New South Wales Supreme Court CITATION : Prosser v Eagle [2002] NSWSC 256 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20460/94 HEARING DATE(S) : 15/10/01 - 15/11/01 JUDGMENT DATE : 2 April 2002 Sarah Kimball Prosser (Plaintiff) PARTIES : Sandra Eagle (First Defendant) The North Coast Area Health Service (Second Defendant) JUDGMENT OF : Dunford J COUNSEL : R Ingram (Plaintiff) D Higgs SC (Defendants) SOLICITORS : McClellands (Plaintiff) Blake Dawson Waldron (Defendants) CATCHWORDS : NEGLIGENCE - medical practitioner - failure to diagnose condition Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Rogers v Whittaker (1992) 175 CLR 479 CASES CITED : Ainsworth v Levi (unreported - Court of Appeal - 30 August 1995) Lowns v Woods [1996] A Torts R para 81-376 Shead v Hooley [2000] NSWCA 362 Rosenberg v Percival [2001] HCA 18, 75 ALJR 734 DECISION : See para 177. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 2 APRIL 2002 20460/94 Sarah Kimball PROSSER v Sandra EAGLE & Anor JUDGMENT 1 His Honour: In these proceedings the plaintiff, Sarah Kimball Prosser, claims damages for professional negligence allegedly visited on her following the birth of her second child. The first defendant, Dr Sandra Eagle, is the medical practitioner who treated the plaintiff at the Coffs Harbour District Hospital, a public hospital conducted by the second defendant, the North Coast Area Health Service. The negligence alleged is the failure to diagnose and appropriately treat a disruption of her pubic symphysis which she claims she suffered at the time of, and as a result of, the birth. INTRODUCTION 2 The litigation has had a sorry history. Although the events complained of occurred in September-October 1988, the proceedings were not commenced until 1994. In the proceedings as originally constituted, the plaintiff alleged negligence on the part of the first defendant in failing to accede to her request to facilitate the birth by way of a caesarean section, thereby causing the disruption, and secondly in the failure after the birth to diagnose and appropriately treat the condition. 3 The first trial took place from 3-12 February 1997 before Bruce J, when judgment was reserved. Judgment was ultimately delivered on 17 July 1998 and damages assessed on 12 August 1998. 4 His Honour found both allegations of negligence established but only gave reasons in respect of the first allegation, saying merely that: "The alternative basis put for liability is also made out in my view but there is no significant damages which flow from the breach." His Honour went on: "So far as the claim against the hospital is concerned I accept that the physiotherapist employed by the hospital Mrs Muir became aware of the problem but apparently did not communicate the information to any treating doctor or record it in the hospital records. In my view such conduct constitutes an actionable breach of duty but the damages are minimal." 5 The defendants appealed and on 4 June 1999 the Court of Appeal upheld the appeal, holding that the first head of liability was not established, but because of the trial judge's failure to give reasons ordered a new trial limited to the issues (i) whether there were breaches of duty by either defendant in the care and treatment of the plaintiff in the period from the birth on 11 September 1988 to the date of the post natal check-up on 20 October 1988 and (ii) if so, the amount of any damage suffered. An application by the plaintiff for special leave to appeal was refused by the High Court on 30 November 1999. 6 On 30 August 2001, Bell J by consent ordered that the issue of breach of duty be tried separately and prior to the issues of causation and damages, the plaintiff having undertaken that in the event of her being successful in establishing breach of duty she would agree to mediation in an attempt to resolve the further issues. The allegations of negligence now relied upon are subscribed to paragraph 6 of the Further Amended Statement of Claim filed in Court during the hearing on 2 November 2001. 7 One of the obvious consequences of these delays is that the memories of the parties and witnesses are strained and faded. This is a particular problem for the plaintiff who has only her memory to rely on, whereas the defendants and their witnesses from amongst the hospital staff are able to rely on the clinical notes and other records made by them at the time, both for what such records say and for such further recall of memory as is prompted by such notes. In addition they are able to rely on, and give evidence of, their usual practice in particular circumstances and situations, a course not available to the plaintiff. 8 For these reasons I consider there has been a degree of unconscious re-construction on both sides, but because of the lack of any contemporaneous records, the lengthy period she has had to think of it, the number of doctors she has seen, and amount of surgery undergone, such unconscious reconstruction has probably been more extensive on the part of the plaintiff. Both the plaintiff and the first defendant at times made concessions or volunteered information apparently contrary to their respective interests, and I do not consider that either of them deliberately attempted to mislead the Court. FACTS 9 The plaintiff was born in California on 22 November 1954. She migrated to Australia in 1982, was married on 30 August 1986 and gave birth to her first child, a son, on 25 December 1985. Such birth took place at the Coffs Harbour District Hospital ("the Hospital") and the plaintiff was under the care of the first defendant. The plaintiff has also had bowel problems since childhood as referred to in the reports of Dr Child of 13 November 2000 (Ex. 10) at p 2 and Dr Korda of 4 October 2000 (Ex. 11) also at p 2. 10 During 1998 she again became pregnant and again consulted the first defendant, the child being due on or about 27 August that year. During her pregnancy she put on up to about 20 kilos in weight and became concerned about the size of the baby, although Dr Eagle said that she expected the baby to weigh a little over 8 pounds, very similar to her first son. 11 Towards the end of her pregnancy she had pain in her lower back with a sciatic type referred pain down the legs, usually only the left, but at no stage prior to the birth did she have any pain in the front of the pelvic area and in particular no pain in the area of the pubic symphysis or in the sacro-iliac joints at the rear of the pelvis. 12 The child was not born on 27 August but the contractions started on the morning of 11 September 1988, and the plaintiff was taken to the Hospital at about 4am. She claims she was not allowed to push for about an hour and then Dr Eagle said she was going to use her hand to hold up the rim of the cervix. She was then told to push, she bore down with the next contraction and she said she felt the baby's head come down very hard, she felt popping, snapping and a great deal of pain in the pelvic area. Dr Eagle told her that the baby's shoulder was stuck, that she was going to free up the shoulder with her hand by rotating it around, which she did, and as the plaintiff had another large contraction, the baby was delivered with the doctor's hand. 13 The child, subsequently named Jordan, weighed 4.51kg (9lb 15oz) and was healthy. The plaintiff said she was left in the labour ward for about an hour and when told to go back to the ward she was unable to walk because of excruciating pain and needed a wheelchair. She described the pain as being in the whole pelvic area. Subsequently she was given some tablets and then an injection at around 9am. 14 That evening, 11 September, she continued to have intense pain and she could not roll over in bed or pick up anything of any weight. She said she could feel the bones at the front of her pelvis grinding if she tried to roll over in bed. 15 She saw Dr Eagle next on the following day, 12 September, she said she had extreme pain in the pelvic area and could not lie flat in bed and had to lie with most of her weight on her right buttock area. When she tried to roll over or shift her weight in bed she could feel the bones at the front of her pelvis grind together, and the pain was particularly sharp on the left side of her hip at the back, all of which she told Dr Eagle (T 177) who told her she could expect to be sore for a while, as she had had a big baby. 16 She recalled that one day, either 12 or 13 September, Dr Eagle lifted and rotated her left leg whilst she was lying in bed. She told Dr Eagle that it hurt a lot and she also recalled Dr Eagle pushing on the front of her pelvic area and asking if that hurt to which she said "yes" and she told her again about the bones grinding at the front when she moved (T 178). She also said that getting out of bed was extremely slow and painful and that it was extremely painful when she attempted to walk to the bathroom. 17 When she walked to the bathroom she noticed that her legs were some distance apart and the pain was so intense that she walked with a kind of waddle, while she could feel the bones at the front of the pelvis rocking up and down and back and forth (T 178). 18 She also recalled the physiotherapist who helped her get out of bed and supported her while she walked down the hall. She said she told her about the pain she was experiencing in the pelvis and the "rocking" of the bones at the front as she walked and shifted her weight, and that the physiotherapist said that it was not uncommon for the ligaments in the pelvis to stretch during birth, but what the plaintiff was describing made her think that the front had separated. The physiotherapist then brought her a hot water bottle to relieve the pain but the pain in the front of the pelvis was so intense that she ended up tucking it under her left buttock where she received relief to that part of the body. She only recalled seeing the physiotherapist on one occasion. 19 She denied Dr Eagle asking her whether she wished to be referred to an obstetrician or gynaecologist for treatment of the pelvic pain, and she denied that she asked to be referred to an orthopaedic specialist. On the Friday she had a high temperature, and although Dr Eagle asked her to stay whilst the temperature was checked out, she insisted on going home on that day. Meanwhile Dr Eagle had assured her that everything would be alright, that she could expect to be sore for some time because she had had a big baby and that it would take time to settle, but she would be alright eventually. 20 After going home she was in great pain on the Friday evening, and the following day felt extremely unwell so she returned to see Dr Eagle at her rooms. She said she found it very difficult to get up the stairs to Dr Eagle's consulting room and needed her husband's assistance to do so (T 185), she told the doctor she was feeling very sick, that she was unable to sit comfortably to feed her baby, that the bones were still rocking back and forth when she walked, that she had a lot of trouble getting up the stairs and that she was in a great deal of pain (T 186). 21 Dr Eagle did an internal examination and told her that she had a haematoma about the size of a grapefruit between the vagina and the rectum, and that the fever that she was suffering was due to this haematoma abscessing. 22 She claimed that Dr Eagle prescribed antibiotics for her on that day but later telephoned her to say that she was able to arrange for Dr Ghosh, a specialist obstetrician, to include the plaintiff in his surgery list at the private hospital in Coffs Harbour, Baringa Private Hospital ("Baringa") on the Monday morning for the purpose of having the haematoma surgically drained. 23 She said she entered Baringa on the Sunday evening (18 September) and she asked Dr Eagle, as she was going back to hospital, if it would be possible to have x-rays of the front and back of the pelvis done, but Dr Eagle told her that once the haematoma was drained she would be feeling more comfortable. The haematoma was drained the following day and following surgery the pressure from the haematoma was relieved but the "other pain" had not changed (T 190). She went home and "basically got on with my life the best I could". 24 She had a post natal (six week) check-up with Dr Eagle on 20 October at which time she was continuing to have bone pain, the rocking feeling when she walked, discomfort when she sat, pain on the left side and difficulty coping with the baby. Once again she had difficulty with the stairs at Dr Eagle's rooms. 25 She told Dr Eagle she was still having the pain, could not get up the stairs very easily, was still walking with the waddle and could still feel the bones rock when she walked, that trying to roll over in bed created a lot of pain at the front of the pelvis where she could feel the bones grind together and also at the back on the left side, along with sciatic pain down her left leg. She said Dr Eagle told her that it was ligament pain because she had had a big baby, parts of her body had stretched, and that it could be six months before she felt really well again (T 191-2). She agreed in cross-examination (T 264) that by the time of this consultation some of the pain in the pelvic area had improved and also her ability to walk, but she said she was still walking with a waddle with her legs apart (T 265). 26 Also in cross-examination she agreed that when giving evidence at the earlier trial before Bruce J she was unable to remember Dr Eagle palpating her pelvic bones whilst in Hospital, but she said she can remember it now; and her explanation for this was that she had tried to put it out of her mind over the years (T 198, also T 244-5). She seemed to say (T 199 – 203) that before she had the haematoma drained she had pain all over the pelvic area but after the drainage by Dr Ghosh the pain became more specific, although even before the haematoma was drained she had pain at the front of the pelvis. She also had other problems in the pelvic area, including a full colon. Some of her answers were difficult to reconcile particularly in detailed cross-examination (at T 215 to 222) concerning the clinical examination done by Dr Eagle. 27 As to her stay in Baringa, she said that the pelvic pain and looseness of the bones continued and, although she believed she reported these matters to the nursing staff she was very vague about such complaints, and she did not recall reporting them to Dr Ghosh. Also she could not recall Dr Ghosh examining her in the supra pubic area, or at all (T 238-9), although the Baringa notes and Dr Ghosh's evidence indicate that he did. 28 In November-December 1988 she again saw Dr Eagle, this time for continuing chronic constipation, and was referred to a surgeon, Dr De Bisscop, who operated on her bowels at Baringa. Although she claims she still had the pelvic pain, the grinding, the rocking and the waddle and said she mentioned these matters to the nurses, she did not have a specific recollection of telling anyone at the hospital that she was still having trouble walking because of the looseness of her pelvic bones (T 260). She does not recall telling either Dr Eagle or Dr De Bisscop of her pelvic problems at that time (T 258-9). 29 About six months after the birth, having moved to Canberra, she continued to suffer pelvic pain, particularly in the area of the pubic symphysis. She consulted Dr Close who carried out a number of tests, including having her stand on one leg at a time and also caused her to have her pelvis x-rayed. In the light of the clinical examination and the x-rays, Dr Close considered that the plaintiff probably had a disruption of the pubic symphysis and referred her to an orthopaedic surgeon, Dr Gillespie, who confirmed the diagnosis; and he called in a senior orthopaedic specialist, Dr Coyle; and ultimately Dr Coyle carried out surgery on the pubic symphysis on 7 September 1989 with Dr Gillespie assisting. Unfortunately the operation was not a success and despite a number of subsequent operations the plaintiff is still considerably disabled. 30 Although the plaintiff claims that she made constant complaints to Dr Eagle and to the nursing staff at the Hospital, and although the Hospital notes, including those made by Dr Eagle, record continuing pelvic pain, there is no record whatsoever of any complaints of a grinding sensation when rolling over in bed or transferring her weight from one side to the other, nor is there any record of any complaint of the bones rocking up and down or her feeling movement or looseness when she was walking. One can understand how in a busy hospital nursing staff and the doctors may omit from time to time to record details of a specific complaint of pain, but I consider it unlikely that if the complaints were made as specifically and as frequently as the plaintiff claims they were, that there would be no reference to such specific complaints in the Hospital records. Similar considerations apply to the records of Baringa and Dr Ghosh. Once again there is reference to pelvic pain but no reference to specific pain over the area of the pubic symphysis and no record of complaints of grinding, rocking, moving, looseness etc on walking. 31 Moreover, the plaintiff's husband gave evidence and said he visited his wife daily whilst she was in Hospital and can recall her complaining of a grinding sensation when she rolled over in bed, but he gave no evidence of his wife ever complaining to him of looseness or movement on walking; and on one occasion when he was visiting his wife, Dr Eagle was doing her rounds and he did not give any evidence of his wife complaining, at least on that occasion, to Dr Eagle about grinding, looseness, movement etc. He gave no evidence of assisting his wife up the stairs to Dr Eagle's surgery on Saturday 17 September, or of any difficulties she had walking or complaints of looseness or grinding of her pelvic bones at any time after her discharge from Coffs Harbour District Hospital on 17 September. I appreciate that he was only called on the limited issue of whether she complained to him of a grinding sensation, but his lack of evidence on these other matters does not assist the plaintiff: Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9. 32 Dr Eagle, the first defendant was, and is, a general practitioner with an interest in obstetrics and holds a Diploma in Obstetrics and Gynaecology. She had only a vague recollection of the plaintiff's confinement and hospitalisation without reference to the hospital notes and a large part of her evidence was based on her usual practice. She did recall seeing the plaintiff during the course of her second pregnancy and described it as a normal pregnancy except for the occasion on 24 June 1988 when the plaintiff visited her urgently with a panic attack and she recalled another episode when the plaintiff complained of upper abdominal pain, which is not unusual in pregnancies and which resolved. Then on 18 August 1988 she noted that the plaintiff had mild sciatica, which apparently resolved as there was no further record of it. She was present at the birth which she described as a normal vaginal delivery with a second degree perineal tear which required stitches, that is a skin tear from the lower edge of the vagina extending approximately midway towards the anus. The baby weighed 9lb 15oz at birth. Dr Eagle was not aware of any popping, snapping or tearing other than the perineal tear at the time of birth. 33 Later on the day of the birth, the plaintiff complained (as recorded in the Hospital notes) of coccygeal pain and backache. She was given Aspalgin, a mild analgesic which did not relieve the pain and so Dr Eagle was asked to see her. She complained to Dr Eagle of severe pelvic discomfort, the doctor examined her and found that she was tender particularly in the perineum and towards the coccyx, and over the sacro-tuberous ligament, more tender on the right. She concluded that she was suffering from ligamentous pain and arranged for Dr May, a fellow medial practitioner, to authorise the administration of Pethidine and Stemetil which are analgesics. These apparently had some effect in relieving the pain. 34 By 10pm that evening the plaintiff had been up to toilet and shower and at 6am the following day the nursing notes record that she had again been up to the toilet, but Aspalgin had again been given for coccyx pain. 35 Over the next couple of days the plaintiff developed a large bruise in her perineum and complained of generalised pain corresponding to and just beyond the area of the bruising. 36 Dr Eagle said that when she saw the plaintiff on the morning of 12 September, she noted that the perineum suture was intact and the suture line was clean, dry and hygienic, and in answer to her questions the plaintiff told her that she felt a little better and so she noted that the pelvic pain was settling. By reference to her usual practice she believed that she would have palpated the lower abdomen (that is the fundus and the uterus) about 1 inch below the umbilicus, but would not have carried out any further physical examination on that occasion. 37 That same day, Sister Fenton, the nurse in charge, recorded in the Hospital notes that the plaintiff was severely bruised in her anal/buttocks area, was unable to sit thereon and was having difficulty in handling the baby because of the discomfort. Sister Seiver that evening noted that she was ambulating slowly, but just to the bathroom and needed help changing the baby. 38 On 13 September she was still painful in the coccygeal area and unable to sit on her buttocks, needing assistance at times. When Dr Eagle saw her she noted that she was bruised in the perineum and buttocks area. On 14 September according to the Hospital notes she complained that she was still sore, and in particular complained of bilateral hip pain radiating to the knee similar to the pain she had had during the pregnancy at 6 months and her buttocks were still bruised, she was having difficulty handling the baby because of discomfort, her perineum was red and painful and according to the Nursing Care Plan she was painful when walking. 39 By this stage the first defendant was concerned about the plaintiff's continuing complaints of pain and tenderness, but felt that the bruising was probably the cause of the problem. She would have liked to have done an internal examination at that stage but considered that it would have caused too much pain for the plaintiff unless done under anaesthetic, and she did not have ready access to an anaesthetist at the time; but she thought there was a real problem (T 894). 40 By 15 September the plaintiff was still complaining of excessive pain and now was referring to pain across the front of the pelvis as well, and Dr Eagle decided to do a detailed clinical examination. Specifically she palpated across the iliac crest including the front of the pubic symphysis from one side of the ilium to the other, using two thumbs so as to be able to exert pressure with one thumb on top of the other, asking the patient to tell her exactly where she was sore and in particular if there was anywhere more sore than elsewhere. She also felt the symphysis, in particular to try and ascertain whether the joint was enlarged or not. She recalled the plaintiff telling her that it was painful everywhere she pressed, but on specific questioning she was not able to isolate an area of more intense pain. As Dr Eagle pressed across and down at the joint of the symphysis pubis she felt no swelling and the joint was narrower than the width of her thumb. Although the plaintiff complained of being tender at the joint she did not say that it was more tender at the joint than elsewhere. 41 Following that, the doctor did what are called "spring tests", that is pressing downwards and outwards on the iliac crest sides of the thighs whilst the plaintiff lay on her back. Once again the plaintiff complained of pain but did not isolate or localise the pain. The doctor then compressed the hips as hard as she could by pressing inwards and once again no specific pain was elicited at the symphysis. She then slid her hand under the plaintiff's lower back and palpated across the back in a line from the sacro-iliac joint to the other side and once again there was no complaint of focal pain (T 765-6). 42 Dr Eagle could not recall doing any further tests but, as already noted, the plaintiff gave evidence that she also abducted the left leg (she was not sure whether it was done to both legs) whilst the plaintiff was lying on her back. After the examination Dr Eagle got the plaintiff to walk along the bed and across to the ensuite bathroom, a distance of approximately 4 to 5 feet. The plaintiff moved slowly, was extremely upset at walking and said it was painful to do so, but the doctor did not observe the sign that she was looking for, namely a waddling movement of the pelvis. The plaintiff walked with her hands along the bed, grabbing for the furniture (T 768-773). 43 The first defendant was concerned that there may have been a disruption or tearing of the symphysis pubis and these tests were carried out in an effort to determine whether that was the appropriate diagnosis; but in the absence of localised or focal pain she formed the view that her pain was not the result of any disruption, but normal tenderness, of the symphysis pubis (T 919, 931-2). 44 Dr Eagle had not done the "spring tests" before and had not had any previous experience of patients suffering a post partum disruption of the pubic symphysis, although she was aware of the condition. It is not uncommon for women to develop looseness in the pubic symphysis prior to giving birth, and she was familiar with the walk associated with that condition and did not observe that instability when the plaintiff walked. 45 She said that although she excluded the disruption of the symphysis pubis as the cause of the plaintiff's pain, she was nevertheless concerned about such continuing pain and the continued difficulty in walking, and for this reason she was anxious to get a second obstetric opinion, but she said the plaintiff asked for an orthopaedic surgeon to be consulted which she, Dr Eagle, did not consider appropriate, as she was unable to elicit any excessive pelvic movement. She made a provisional diagnosis that the plaintiff's problems were mainly muscular and considered that the appropriate treatment was gentle and regular movement, warmth and encouragement; and for this reason she arranged for the plaintiff to be seen by the physiotherapist, Mrs Muir. Her entry in the hospital notes was as follows: "Physio to see O/E No XS pelvic movement - muscular symptoms mainly For gentle regular movement/warmth encouragement Otherwise well" The next entry in the hospital notes is by the physiotherapist; Mrs Muir, later that day as follows: "Seen by physio - Encouraged to ambulate - Hot pack applied to back suggest pelvic rocking with knees together as able" and on 16 September she recorded: "Seen by physio. Encouraged to ambulate. Hot pack to lumbar sacral spine with some relief." 46 Elizabeth Muir is an experienced physiotherapist with considerable experience in obstetric work. She was involved with a patient some years ago when working at Dorrigo District Hospital who had a medically severed symphysis pubis which had made a deep impression on her, and she said that if she ever saw anything like it again it would have alarmed her. She said that if a patient had pain across the front of the pelvic girdle you would look for some laxity, but all post partum women have some laxity in their pelvic ligaments, and if the plaintiff had complained to her of rubbing or grinding she would have suggested that the patient stay in bed and referred her to Dr Eagle, and possibly discussed it with an orthopaedic surgeon. If such complaints were made she would be looking for increased laxity in the symphysis pubis and would try standing the patient on one foot and then the other. She would not encourage her to ambulate. 47 She was referred particularly to her entry in the Hospital notes on 15 September 1988 and she said that note was inconsistent with a complaint by the plaintiff of pain across the pubic bones or any complaint of movement or grinding on walking etc, and similarly her entry on 16 September with reference to encouragement to ambulate and the application of a hot pack to the lumbar sacral spine is inconsistent with there having been a complaint made to her that day about pain across the symphysis pubis. 48 She insisted (at T 1133-4) that if the patient had complained of popping, snapping or movement of the pelvic bones she would have noted it, and she was sure that if the patient said that when she walked the bones at the front of the pelvis moved, she would have remembered it because of what she described as the "quite horrific experience" she had previously had at Dorrigo and would have written it down in the notes (T 1134). She said that if she had found tenderness over the pubic symphysis but thought it was within ordinary physiological limits post partum she would not have been concerned about it and would not have written it in the notes, but if the patient said she was sore all along the front of the pubic bone and had considerable pain she would have noted it (T 1139-40). 49 That afternoon (15 September) Dr Eagle and Mrs Muir had a conversation in the corridor at the Hospital. According to Dr Eagle's evidence in chief (T 809), Mrs Muir asked the doctor what she thought the problem was. Dr Eagle said she was concerned about the pelvic outlet and the ligaments supporting it, and asked the physiotherapist whether she thought there was anything orthopaedic which the doctor had not been able to detect. Mrs Muir replied that she did not think so, that the plaintiff was a little tender across the pubic symphysis, but she felt it was within physiological bounds. 50 In cross-examination, Dr Eagle said (T 938) that she told Mrs Muir that she had identified pain over the pubic outlet ligaments, and asked whether she thought there was any pubic symphysis problem, the doctor having examined her that morning herself. Mrs Muir replied that she did not think that it was a pubic symphysis problem of an unnatural or injurious degree, that the symphysis was a little tender but she felt it was physiological. 51 The first defendant's evidence of this discussion in the first trial (Ex. K) had been as follows: "I spoke with Beth after she had seen her. Beth asked me what I felt was the problem and I said I felt it was probably to do with the ligaments supporting inside the pelvic area and the haematoma related to that and I asked Beth whether she felt there was any orthopaedic problem that I had not been able to detect and she said she did not think so … She mentioned that she was tender over the pubic symphysis but she felt it was physiological, an accepted response that you see in a lot of deliveries." 52 Mrs Muir had no recollection of this conversation with Dr Eagle, but as to the plaintiff's evidence that she told her that what she was describing made the physiotherapist think that the front of her pelvis had separated, Mrs Muir was adamant that she would never discuss diagnosis with a patient because she regarded it unethical for a physiotherapist to do so, she considered that to be the responsibility of the doctor, although she conceded that younger physiotherapists might take a different view (T 1118). She was very definite about this point and I found her convincing in respect of it. 53 Sister Fenton was one of the nurses on duty in the obstetrics ward at the Hospital whilst the plaintiff was a patient and made a number of entries in the Hospital notes. She said that she had no independent recollection of the plaintiff but the fact that in her entry of 12 September she described the plaintiff's anal and buttock area as "severely" bruised indicates that she probably regarded it as a little more than she would have expected normal for a woman with a second degree tear (T 777), and by the 14th she would have been concerned if the mother was still having pain when walking at 4 days post partum (T 787); but she also said that if the patient had complained to her of a grinding sensation of bones in the pelvic area on ambulation or movement, she would have recorded it in the notes (T 796), and likewise if a patient complained of something specific such as a sensation of snapping or popping or tearing at birth (T 803). 54 By the morning of 16 September the plaintiff was febrile with a temperate of 37.5 degrees at 7am and was anxious to go home notwithstanding her continuing pain. Dr Eagle (at T 809) was concerned about her bowel problem and her pelvic outlet and the symptoms relating to it including the perineal and perianal bruising that extended a little to the buttocks, and that she may have damaged one of the major ligaments of the outlet, resulting in weakness in that area. She did not want her to go home but the plaintiff was insistent and so she discharged her, but told that if she had any difficulties over the weekend to contact her. 55 The plaintiff did go to Dr Eagle's rooms on the following morning, Saturday 17 September; accompanied by her husband. She told Dr Eagle that she had been in a lot of pain overnight, she was not feeling well and wondered if the doctor could do something for her. She then at Dr Eagle's request went into the adjoining examination room, got onto the couch unassisted, albeit slowly, and the doctor carried out an internal examination which revealed a moderate to large haematoma on the right vaginal wall. She was concerned that it might be getting infected and felt that would explain the plaintiff's temperature and told her that the best thing to do would be to see a specialist obstetrician in hospital and have it treated, which would normally involve having it drained under general anaesthetic (T 812). 56 The plaintiff made no further complaints on that occasion. Dr Eagle was particularly concerned to watch the plaintiff walk again and said that she walked relatively normally, although slowly, to the top of the stairs leading from the consulting room, there was no movement of the pelvis to indicate instability although she was obviously uncomfortable, there was no pelvic tilt and she did not waddle. The internal examination was of the lower vaginal area and not of the pubic symphysis. 57 Following this consultation Dr Eagle was able to arrange for the plaintiff to be admitted to Baringa the following day under the care of Dr Ghosh, a specialist obstetrician and gynaecologist. She said this was arranged in a telephone call with Dr Ghosh, and by reference to her usual practice she would have told him that she had a 34 year old woman having had her second baby 6 days ago, that it was a big baby, 9lb 15 oz, and that she had suffered, or complained of, severe pain since the delivery, that she had found on her examination that day a pelvic haematoma which explained in part some of her symptoms, but that she wondered whether there was something else going on with respect to her widespread pain complaint, she would have described the bruising of the buttocks and her concern that he should take over her care. 58 This was only ever put forward as a re-construction based on "usual practice" and I have some reservations as to how accurate it may be. For one thing, I would have expected reference to have been made to the apparent need for surgical drainage of the haematoma and inclusion of the plaintiff in Dr Ghosh's operating list for the Monday, but there possibly was some general discussion about the plaintiff's general condition. 59 In any event, the first defendant accompanied the plaintiff to Baringa on 18 September and completed the 'History and Admission Advice'. She described the provisional diagnosis as "Paravaginal Haematoma and Fever + [for] Drainage of Haematoma / Abscess", and in the box marked, 'History of Present Illness and Surgery' she wrote "11.9.88 - Delivery 9lb 15oz Male Baby (Jordan) Severe Pelvic Pain Post Delivery – Bruising of Buttocks ++ ->Haematoma". 60 Dr Ghosh carried out the drainage of the haematoma the following morning and the plaintiff remained under his care at Baringa until 27 September. Dr Ghosh noted on the Medical History, which he filled in, in addition to the right vaginal wall haematoma, "an injury to the pelvis during spontaneous vaginal delivery". 61 He furnished a report (Ex. 15) in which he said that during her stay in Baringa he visited her almost daily. He said that from the records it appeared that her post-operative recovery was somewhat complicated and slow, she complained particularly to the nursing staff, of pain and discomfort of varying degrees at different times, particularly affecting the lower abdomen, lower back and pelvic areas, but every time he visited her, usually in the morning, she informed him that she was feeling better than the previous day and gave him the impression that she was improving daily, slowly but steadily. He said he was not aware of her post partum problems whilst she had been at the Hospital, and she did not mention anything to him about pelvic instability. Moreover, according to his general observation and physical examination of her on his daily visits there was nothing to suggest pelvic instability, although she did complain of soreness of the pelvic girdle, the pubis and the coccyx. He considered all her symptoms and signs were consistent with a recent difficult vaginal delivery of a big baby complicated by a vaginal haematoma infection. 62 He also gave oral evidence. He was referred to the 'Admission History and Advice' containing the reference to "Severe pelvic pain post-delivery" and he said that in that context he would take over the total care of the patient in relation to her problems so far as it concerned his specialty of obstetrics and gynaecology. In addition to what Dr Eagle admitted the patient for, if there were any other problems in relation to the childbirth he would look after those (T 1183-4, 1207). 63 Dr Ghosh physically examined the plaintiff on a number of occasions whilst she was in Baringa, including palpation of her lower abdomen, the pubis and supra pubic area, and said that if such examinations had elicited tenderness of the pubic symphysis he would have noted it; but he could not specifically recall palpating the pelvic bones or the pubic symphysis and he agreed (at T 1246) that there was no reference in the Baringa notes to any examination by him of the pelvic bones. He was aware of the condition of disruption of the pubic symphysis during childbirth, but he had not experienced it in his own practice, although he had experienced such condition in the antenatal period towards the end of the pregnancy where it had continued for a few days after the childbirth, but never required further treatment. In fact he had never been aware of a separation or diastasis of the symphysis pubis in a patient where it had only been noticed after birth (T 1201). 64 I formed the impression from Dr Ghosh's evidence that, although the patient was only referred to him specifically for drainage of the haematoma, he did have regard to her general condition, including her general pelvic condition or at least was prepared to do so if any problem arose, and no complaint was made. This is borne out by his daily examinations of her lower abdomen and pelvic areas as recorded in the Baringa Hospital notes. 65 Those notes record complaints by the plaintiff to Dr Ghosh and/or the nursing staff of sore pelvic girdle and coccyx, tender and painful abdomen, suprapubic soreness and dragging pain, suprapubic tenderness, vaginal soreness and tenderness; but there is no reference to any complaints of a rubbing or grinding sensation on rolling over or any sensation of looseness or movement on walking. 66 The plaintiff could not remember whether or not she made these complaints whilst she was in Baringa. I find it surprising that she claims to remember detailed and frequent complaints of this nature whilst in the Hospital but cannot recall whether she made such complaints whilst at Baringa. There is no record of her having any particular difficulty in walking whilst in Baringa. 67 I am therefore satisfied that she made no further complaint to Dr Ghosh of grinding or movement of the pelvic bones, and similarly she made no complaint to anyone at Baringa of these conditions, and there was nothing about her walking whilst in Baringa which attracted the attention of the nursing staff by way of a waddle etc. 68 The plaintiff saw Dr Eagle again at the latter's surgery on 20 October 1988 for her post natal check-up. Dr Eagle said (T 822 et seq) that when she ushered the plaintiff into the consulting room she observed that she held herself "a little stiffly, quite erect, and her steps were maybe slightly smaller than normal" but she noticed nothing else about her gait. She later asked her to get on the examination couch which she did unassisted and without much difficulty. 69 The doctor then carried out a bimanual examination which essentially involved placing one hand into the vagina and using the other hand externally to depress the pelvic contents, to ensure the uterus has shrunk back behind the pubic symphysis and the bladder, and thus she was able to feel the symphysis above and below using both hands; and when she did that, there was no pain response (T 961-2), and she also examined the sacrococcygeal ligaments within the pelvic area. She also watched her walk as she left the consulting room and considered her walk quite acceptable and much freer than it had been on 17 September. 70 The plaintiff told her she was generally still a little tender in the pelvis and the first defendant told her to expect continued improvement over a period of time if she was careful not to aggravate it. She told her that if it had not got better within 3 months she should seek another review, but she had heard of it taking longer, up to 6 months. She was then referred to that part of her note on the patient's card reading "Still pelvic tenderness – reassured", and, by reference to her usual practice, this prompted her to say that she had actually felt some tender areas around the pelvis, but she could not say where (T 827). 71 The plaintiff came to see the first defendant again on 15 November 1988, complaining of chronic severe constipation, a loaded rectum and other bowel problems. The first defendant referred her to Dr De Bisscop, a general surgeon, and she subsequently underwent a number of procedures under his care in respect of that condition. There is no reference in Dr Eagle's notes of that consultation, of any complaint or reference to pelvic pain, tenderness or instability and Dr Eagle could not recall any such complaint or relevant examination on that day (T 827). She was not cross-examined in relation to this consultation. Moreover, although I appreciate that her admission to Baringa under Dr De Bisscop was for her bowel condition, and the focus would have been on that problem, I can see no reference in the Baringa Hospital notes referring to any pelvic problems or difficulty in walking etc (although it must be conceded that the copies available are not good, and are difficult to read). 72 The plaintiff sought to rely on an extract from the cross-examination of the first defendant at the first trial (Ex. V) which is as follows:- Q. "When she came to see you, after she had given birth to the baby, she was waddling, wasn't she? A. She was. Q. She was walking with a waddling movement? A. I did not notice a waddling movement as much as the antenatal time, no. Q. But this was the position that when she came to see you she would come to your rooms? A. That is correct. Q. And you would see her when she came into your room? A. That is correct. Q. And so she might only walk a couple of metres in the time she would be in your presence? A. From the top of the stairs to the room and one flight of stairs and from the car park to the bottom of the stairs. Q. You would stand there and watch her, would you? A. I did not see her walk except from the top of the stairs to the room." 73 The plaintiff claims that the first answer constitutes a clear and specific admission by Dr Eagle that the plaintiff walked with a waddle when she came to see her at her rooms either on 17 September or 20 October, although no one was able to tell from the context which date was referred to. In any event the answer is promptly contradicted by the following answer and I consider the first answer as recorded is probably a transcription error, particularly as it appears that in the first trial no corrections were made to the transcript. See generally the discussions with counsel at T 1250 and T 1289. In the circumstances I give no weight to this piece of evidence. 74 On 29 March 1989 the plaintiff, having in the meantime moved to Canberra, went to see Dr Susan Close who was acting as locum for Dr Quach. She complained of a number of things, particularly difficulty walking and also a feeling of grinding on movement and pain in the pelvic region. She was still having problems with her bowels and generally in her daily life, including having intercourse with her husband. She gave a history of hearing a snapping sound at the time of the birth. 75 Dr Close examined her by kneeling on the ground in front of her and palpating along the front of the pelvic rim and getting her to stand on alternate legs. This disclosed a degree of vertical separation of the pubic bones at the pubic symphysis which Dr Close regarded as abnormal. She therefore had her pelvis x-rayed by Dr Griffin the following day and these x-rays disclosed malalignment of the symphysis pubis with the left pubic bone being 2 or 3mm higher than the right, also an erosion of the left side of the symphysis and evidence of erosion of the left sacro-iliac joint (Exs. E and F and Ex. C p 57). 76 Dr Close therefore referred her to Dr Michael Gillespie, an orthopaedic surgeon, who saw her on 11 May. She complained to him that she had been troubled by a grinding sensation at the pubic symphysis which was extremely painful and seemed to be related to movement, walking and lifting etc. She said that she found it difficult to sleep on her left side due to the pain, she had had left side sciatic pain prior to the birth of the baby and this had persisted since then. Dr Gillespie noted that Dr Griffin's x-rays showed the symphysis was unstable, and possibly also some erosion, so he arranged for her to have plain x-rays of the lumbo sacral spine and coccyx, and also a bone scan. 77 He discussed the case with his orthopaedic colleagues and all agreed it was a most complex case. He then referred the plaintiff to Dr WJ Coyle, a senior orthopaedic surgeon in Canberra, and ultimately on 7 September 1989 Dr Coyle, assisted by Dr Gillespie performed a fusion operation on the plaintiff which was not successful. When the symphysis was exposed after incision it was found to be "markedly mobile." After the operation there was still complaint by the plaintiff of popping or grinding on walking which they attempted to localise with her, but were unable to do so (T 68-69). The plaintiff has had a number of further operations, including some by Dr Ellis, but has been left with continuing disability and pain and restriction of movement in the pubic symphysis area. LAW 78 The standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill, and that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade: Rogers v Whittaker (1992) 175 CLR 479 at 487, although in cases of diagnosis and treatment, as opposed to the provision of advice, responsible professional opinion will have an influential, often a decisive, role to play in determining whether the appropriate standard of care has been met: ibid at 489. This is because diagnosis and treatment are more likely to involve technical questions which a tribunal of fact can only determine in the light of expert evidence: Ainsworth v Levi (unreported – Court of Appeal – 30 August 1995) per Handley JA at 14. See also Lowns v Woods [1996] A Torts R ¶ 81-376 per Mahoney JA at 63160-1, Shead v Hooley [2000] NSWCA 362 at [42] to [46]. The position in this regard was recently summarised by Gleeson CJ in Rosenberg v Percival [2001] HCA 18, 75 ALJR 734 at [7] as follows: " … the relevance of professional practice and opinion (is) not denied; what (is) denied (is) its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis on which a court may reasonably act. But in any action brought by a patient, the responsibility for deciding the content of the duty of care rests with the court, not with his or her professional colleagues" EXPERT MEDICAL EVIDENCE 79 In the present case, a number of medical practitioners gave evidence and expressed opinions. They were, for the plaintiff, Dr Close (a general practitioner with a Diploma in Obstetrics and Gynaecology, who in March 1999 diagnosed the plaintiff's condition), Dr Quach (a general practitioner with a practice partly in obstetrics, but without additional qualifications in that field), Professor Mackay (a retired Professor of Obstetrics and Gynaecology), Dr Barnes (a specialist in obstetrics and gynaecology), Dr Gillespie and Dr Ellis (both specialist orthopaedic surgeons who subsequently treated the plaintiff) and Dr Smith (also a specialist orthopaedic surgeon); and for the defendant, Dr Ghosh (a specialist obstetrician and gynaecologist, to whom the plaintiff was referred for drainage of the paravaginal haematoma) Drs Child and Korda (specialist obstetricians and gynaecologists) and Dr Sullivan (orthopaedic surgeon). Although the evidence of the various specialists was helpful and relevant, the first defendant did not profess to possess specialist skills, and the standard of care applicable to her is that of a general practitioner with a Diploma of Obstetrics and Gynaecology, practising obstetrics as part of her general medical practice, for practical purposes having the same qualifications and professing the same skills as Dr Close. 80 As I understand the evidence from a number of the medical witnesses, the symphysis pubis is the ligamentous material which joins the two arms of the pelvic bone at the front. During the later stages of pregnancy and during childbirth due mainly to hormonal changes there is a relaxation of the ligaments of the pubic symphysis and of the pubis generally which involves a further separation of the pubic bones and the stretching of the pubic symphysis, but in some cases there can be a shearing or tearing of some of those ligaments and, depending on the extent of such shearing or tearing, this is commonly referred to as a disruption of the pubic symphysis. A total separation would be extremely rare and render the patient unable to walk. The difference between natural separation due to hormonal changes and partial disruption or separation due to shearing and tearing is only a matter of degree. The condition generally recovers naturally over weeks or months and cases necessitating surgery are rare. 81 Dr Gillespie, an orthopaedic surgeon, described the symphysis pubis as a fibrous cartilage joint, a broad cartilaginous mesh, which binds the pubic bones together firmly but not rigidly. He referred to the x-rays taken by Dr Griffin in March and May 1989 and drew attention to the physical mal-alignment and the width between the pelvic bones. He said that there is always an increase in the widening of the pubic bones in childbirth (T 31) but generally they contract to a normal width within about eight weeks (T 31), that it is not abnormal for there to be a difference in the vertical alignment of not more than a couple of millimetres and the width of the transverse gap is not abnormal if it is not more than 4 to 5mm (T 12). The x-rays taken by Dr Griffin in March 1989 show a vertical mal-alignment of 2 to 3mm in the stress x-ray (i.e. standing on one leg) which is within normal limits (T 41) and separation of the superior aspect (or top) of the two pubic bones is also within normal limits (T 41) because at the top the gap is only about 1mm and a gap of up to 4cm is not abnormal. While the gap at the top is only about 1mm, these x-rays showed an area of erosion on the left side on the lower aspect, but even allowing for that the gap is no more than 4 to 5 cm (T 41 & T 46). He said that on the x-rays it was apparent there had been damage to the left sacro-iliac joint and to the symphysis pubis as both areas showed bone erosion and cystic change and the left sacro-iliac joint was widened. It was on the basis of these x-rays that he formed the view that the plaintiff had damaged her pubic symphysis and left sacro-iliac joint. 82 In his report of 30 October 1987 he referred to the plaintiff's history of a pop or snap at the time of delivery and expressed the view that, on the assumption that the plaintiff did report to Dr Eagle the mechanical symptoms namely the grinding sensation of instability of the pelvis, then in his opinion it would have been prudent for Dr Eagle to have considered getting an orthopaedic opinion, whilst in his report of 15 September 2000 he expressed the view that the standard of care by Dr Eagle and the Hospital was not of an acceptable standard in that her pelvic injury was not adequately investigated or imaged early enough. 83 He said that within a week after giving birth he would not regard as excessive a vertical movement of 3 or 4mm (T 27-28) and he described the tests he considered appropriate to be done to a woman who complains of pelvic pain of this type as being (a) with the woman lying down pressing her hips outwards; (b) pressing the hips inwards from each side; (c) with the woman on her side applying axial compression force through the pelvis to the floor; and (d) palpation across the rim of the pelvic bone feeling for a gap. 84 He said that he would expect each of these tests would produce a specific complaint of pain at the joint between the two pelvic bones; but if there was no complaint of specific localised pain and the doctor could not feel any gap at the joint of the symphysis pubis, a disruption of the symphysis pubis was less likely and an appropriate diagnosis would be generalised pelvic pain rather than an injury to the symphysis pubis (T 32-34). 85 He said that if the examination of 15 September was conducted as was later described (substantially corresponding with the tests he had indicated were proper) that was appropriate and if the only complaint was of generalised pelvic pain and not pain specific to the symphysis pubis, the treatment given was appropriate. In particular, if Dr Eagle also observed her walking without any waddling movement or abnormal gait, that was another factor which would reasonably lead to a conclusion that there was no pelvic disruption (T 52-53), and in those circumstances he had no criticism of the treatment as recorded in the Hospital notes (T 61) and he would have no criticism of Dr Eagle on 15 September 1988. In particular he would not suggest that it was unreasonable to fail to take an x-ray within four days of the plaintiff giving birth (T 70). 86 These opinions were expressed on the basis of the complaints recorded in the hospital notes; and he qualified his opinion by saying that if the history included popping at birth or grinding on walking, having regard to the continued complaints of pelvic pain, he would have felt obligated by 15 September to investigate the matter more fully (T 63). If there had been complaints of grinding or slipping or crunching he would have expected such complaints to have been recorded in the Hospital notes by the medical, nursing or physiotherapy staff. In those circumstances x-rays should have been taken including stress x-rays but they may have only have disclosed the same width of lateral separation as those disclosed later, namely within normal limits (T 66), although the March 1989 x-rays did not show symmetrical separation, and there may have been more vertical non-alignment (T 67). 87 As to treatment in the hospital, on the basis of no specific complaint of pain in the symphysis pubis on examination, he would not say that limited mobility as described in the Hospital notes was outside the bounds of reasonable practice, while if specific pain had been elicited on testing in the pubic or sacro-iliac joint, complete immobilisation would have been the preferable treatment, although limited mobilisation whilst in Hospital was not unreasonable (T 57). 88 He was taken through the Baringa notes and said they indicated symptoms consistent with the matter for which she was admitted (drainage of the abscessed haematoma) although consistent with other diagnosis as well. If there was pelvic instability whilst she was there, he would have expected additional symptoms to be recorded in those hospital notes, particularly if she complained of a feeling of movement in the pelvic bones when walking, although such sensation and the pain from the pelvic bone problem could have been masked to her by the pain she was suffering from the paravaginal haematoma and/or the drainage thereof (T 113-14). 89 He agreed that the standard of care given to the plaintiff by the hospital and Dr Eagle depended on whether whilst in Hospital or under Dr Eagle's care she complained of a sensation of movement of the pelvic bones (T 134) and that, by the time the plaintiff was discharged from hospital on 16 September, in the event of no reported complaint to Dr Eagle or the hospital of sensation of movement of pelvic bones on walking, he would not be critical of the treatment provided to the plaintiff in terms of it being within the bounds of reasonable practice (T 125). 90 Dr Close is a medical practitioner with a Diploma in Obstetrics and Gynaecology from the Royal Australian College of Obstetricians and Gynaecologists, and has practised as a general practitioner with a particular interest in obstetrics since 1983. In 1988/9 she had the same qualifications as Dr Eagle has, although she has since upgraded them. 91 She said (T 274-5) that during pregnancy the ligaments of the pubic symphysis stretch due to the hormone called Relaxin. Some women can have some marked mobility and the majority recover within six weeks postpartum (T 276). 92 She said that an examination by palpation whilst the plaintiff was lying down on 15 September indicated that Dr Eagle was considering the possibility of a lateral separation, the examination was appropriate for a lateral separation, but she felt that the patient should have been examined standing up to detect whether there was a vertical separation unless it was too painful for her to stand up, and if an examination had been carried out with the patient standing up, transferring her weight to alternate legs, she believed an excessive degree of pelvic instability would have been elicited (T 285-6). She said that she would expect a woman who had recently given birth to walk with a wide based gait shortly after delivery and would not regard that as unusual (T 288). In cross-examination she agreed (T 300) that, looking in retrospect, it would be hard to say how long it would have taken her if she had been the doctor in charge of Mrs Prosser at the time and in the circumstances described in the Hospital notes to diagnose the nature and extent of her injuries and (T 301) that the development of a haematoma would have made it more difficult to ascertain the precise cause of the complaints and pain that were recorded in the Hospital notes. 93 She was referred to such Hospital notes in some detail and, bearing in mind that the haematoma would have already formed by the 15th (which would explain pelvic pain of a diffuse nature (T 313)), having regard to the generalised nature of the complaints of pain by Mrs Prosser as recorded in the Hospital notes and notwithstanding the unusual feature of there being a difficulty in walking five days after the birth, she would not be critical of any failure by Dr Eagle to diagnose pelvic instability as at 15 September 1988 or indeed up to and including 17 September 1988; although if an x-ray was requested about the time of the plaintiff's admission to Baringa Hospital and that was not followed up she would be critical of the failure to do so (T 315). 94 On the plaintiff's admission to Baringa under Dr Ghosh, which she regarded an appropriate referral for treatment, the responsibility passed to Dr Ghosh and to Baringa, and she had no doubt that Dr Eagle would have assumed that a specialist gynaecologist would have diagnosed any other problems apart from the haematoma relating to the birth (T 315) and the management of her pelvic pain was a matter for him (T 317). 95 She considered the overall care the plaintiff received from Dr Eagle and the Hospital was "suboptimal", and this was based on what she was told by the plaintiff and what appeared in the Hospital notes (T 316). The plaintiff's management at the Hospital could have been better, but not to the extent of her being critical of it (T 319). At 319 she said:- "I don't want to be critical of Dr Eagle's management in a very stringent sense because if you take it point by point her management is acceptable and I wouldn't criticise it. I'm concerned given what I read in the notes and what I heard from Mrs Prosser that over that five-day period it could have been better. That doesn't mean that I have clear evidence that her management, that I could be critical of her management." 96 In relation to the examination of 15 September she said that tests described (which were tests that Dr Eagle claimed to have carried out) would have elicited a lateral separation but not a vertical one although she agreed that if Dr Eagle had pressed over the pubic symphysis she would expect it to be sore and hurt (T 320) and if Dr Eagle examined her pubic symphysis and it was not tender on palpation and there was no evidence of a problem with the pubic symphysis she would not criticise her for not diagnosing pelvic instability (T 322). Although the appropriate lateral separation generally heals naturally with conservative treatment (T 327) she said that she thought the treatment was suboptimal but not disastrous, it was less than ideal but not to such an extent in her view that it would fall below the bounds of the standard of care expected of a medical practitioner (T 327). She felt that once infection had occurred i.e. to the haematoma (which we know developed an abscess) she would expect the plaintiff to literally ache all over and in that situation she would find it difficult for anyone to differentiate the problems until the acute infection was dealt with (T 329). 97 Dr Quach is a medical practitioner in general practice in Canberra and has been the plaintiff's general practitioner since 1990. In fact Dr Close was acting as his locum when Mrs Prosser saw her in 1989. Dr Quach graduated in 1967 and worked at St Margaret's Maternity Hospital for six months doing obstetrics and gynaecology but, unlike Dr Eagle and Dr Close, does not hold the Diploma in that field. He has practised as a general practitioner since about 1970, but ceased doing obstetric work about 1985, and has not delivered any children since that time. 98 In his report of 17 February 2000 which must be read in conjunction with the questions posed in Ex L, he said that if the pain of which Mrs Prosser complained persisted after four days he would have ordered a plain pelvic x-ray to exclude separation of the pubic symphysis which he suspected would have shown some signs of separation and would have required her to remain in bed until an orthopaedic surgeon could see her. 99 In his oral evidence he said that if the patient complained of pain over the pubic symphysis and had difficulty walking he would have ordered an x-ray but if the pain was only general pain in the pelvic area he would still order an x-ray but it was to save himself from litigation (T 342). He said that the fracture of the pubic symphysis and also the sacral iliac joint was something that he had not come across in all his years of practice (T 343). 100 He was referred to the palpation tests carried out by Dr Eagle on 15 September and said that if those tests were carried out including palpation of the pubic symphysis he would have expected the plaintiff to indicate that it hurt at that point (T 357). A failure to complain of specific pain over the pubic symphysis was inconsistent with the condition which he believed she had at that time based on what he later learnt from the x-rays taken in March 1989 (T 359). Although he believed that a plain x-ray of the pelvis should have been taken (T 369-70) this was simply with the plaintiff lying down and did not involve weight bearing x-rays, and he expected that such an x-ray would be capable of excluding separation of the pubic symphysis (T 378). He agreed that the development of the paravaginal haematoma was capable of explaining the complaint of generalised pelvic pain (T 370). 101 He also said that if there was still a problem of instability of the pubic symphysis on 20 October when Dr Eagle carried out the bimanual vaginal examination, he would have expected a complaint of increased pain at that point (T 382-3). And in the event of no such specific complaint of localised pain he would not be critical of the patient being reassured that in all likelihood the pain should improve (T 384). 102 Professor Mackay has had a distinguished career in the field of obstetrics and gynaecology for many years and in particular was Professor and Chairman of the Department of Obstetrics and Gynaecology at the University of Queensland from 1964 until 1989. Since 1991 he has conducted a medico/legal practice in that field. He has also held a number of hospital and teaching posts and written a number of textbooks and research papers. 103 He furnished a lengthy report dated 6 March 2000 in which he was critical in respect of the defendant's treatment of the plaintiff and in particular the failure of Dr Eagle to diagnose the disruption of the pubic symphysis from which, he was satisfied from subsequent events, the plaintiff was suffering. 104 In his oral evidence he said that a normal separation at the pubic symphysis was of 3 to 6 mm up to 6 to 8mm of lateral separation (T 390). He said (T 396) that the disruption of the pubic symphysis was a relatively rare condition and one would really have to have some leading information of the pain that was expressed as being specifically in that area, but it would become more apparent on movement because of the involvement of the sacro-iliac joints where there is greater leverage when the body is moving. 105 He considered that on 11 September when Dr Eagle was asked to see the plaintiff, some hours after the birth, she should have taken a full history and conducted an examination, both externally by palpating the pelvic rim and internally, although he conceded that if during the external examination a gap of not more than 8 mm was detected, the diagnosis of disruption of the pubic symphysis would not be sustained at that stage, and that the plaintiff's pelvic pain so soon after the birth would not of itself justify ordering an x-ray. I am satisfied by other evidence in the case that such examination would have caused unreasonable additional pain to the plaintiff so soon after the birth, and was not necessary or indicated at that stage. I reject the professor's evidence on this point. 106 A lot of questions were put to him on the basis of the plaintiff making specific complaints of localised pain in the pubic symphysis, which I am not satisfied was the case. He said (T 420) that if the complaint was simply that the plaintiff was painful in the whole of the pelvic area it would not be of any assistance to the diagnosis of the disruption of the symphysis pubis, but it would mean that the clinician should not rest until he or she was able to account for the pain (T 420). 107 In relation to the examination carried out by Dr Eagle on 15 September, his view was that such examination was less likely to identify the problem than an examination on the 11th, because by the 15th other symptoms would cloud the picture, including the extensive haematoma in the pelvis, significant muscle spasm due to pain and the damage to the muscles around the area, but he considered the doctor should still feel a separation of the symphysis pubis (T 432). 108 He considered that an x-ray should have been taken before the plaintiff left hospital on 16 September. He was also critical of Dr Eagle's failure to carry out further investigations on 20 October, at the six-week visit because, as noted by Dr Eagle, the plaintiff still had pelvic tenderness, which he considered should not have been the case at that stage (T 445). 109 In cross-examination, he conceded that at no stage in the material provided to him by the plaintiff's solicitors for the purposes of preparing his report, nor in his telephone conversations with the plaintiff, was it ever indicated that the plaintiff had told Dr Eagle of a grating sensation in the pubic area on movement or on walking etc, although he agreed that would be an important presenting feature in order for a clinician of reasonable care and skill to make a diagnosis of disruption of the pubic symphysis (T 448-450). He said that if the tests were carried out as described on 15 September he would have expected complaints of specific localised pain, and if there was no complaints of specific localised pain he would not be critical of Dr Eagle not having diagnosed the pelvic disruption, but he considered one would still have to explain the other symptoms which she was displaying and were not satisfactorily explained (417-18). 110 Ultimately he conceded that he would not be critical of the treatment provided to the plaintiff as recorded in the Hospital notes if she had at no time made complaint to her carers of a sensation of grinding or movement of the pelvic bones on movement prior to day three, when he believed her mobility problems were very obvious (T 510). At T 544-5 he raised the question of whether, after Dr Eagle's conversation with Mrs Muir, the physiotherapist, other tests or examinations should have been done. 111 In his oral evidence he said that the symptoms described in the hospital notes, especially those of pelvic pain extending over a number of days, difficulty in walking and lifting the baby, indicated a continuing pelvic problem which needed investigation; and he was of the view that it had not been properly investigated, except by referral to the physiotherapist (T 582-3). 112 Dr Barnes is a specialist obstetrician and gynaecologist whose experience spans more than 40 years and who furnished two reports. In his first report he said that the apparent severity of the signs and symptoms immediately following delivery, along with the ongoing need for frequent pain relief, should have raised the likelihood of significant damage to the pelvic articulations and, apart from performing a full clinical examination, including palpation of the symphysis pubis, he would have ordered an x-ray of the pelvis. He said that the pain described in Mrs Prosser's case was extraordinary and raised the "near certainty" of the presence of a significant, if not a major, degree of pubis symphysis separation and dysfunction, and given the symptoms he would have consulted an orthopaedic surgeon. In his second report he said that there appeared to be a spectrum of views as to what constitutes appropriate treatment for the condition when diagnosed; from active mobilisation and physiotherapy to practical immobilisation with bed rest, pelvic binders, restricted movements and assisted ambulatory devices, and he preferred the latter view. 113 In cross-examination he agreed that if the tests as described by Dr Eagle had been carried out and if no positive response to specific pelvic pain at the pubic symphysis was elicited, it would be hard to be critical, but he felt that such a result did not "add up" (T 591-2). He conceded that coccygeal pain such as described in the notes and radiating hip pain could also cause problems. All his answers seemed to be coloured by the fact that he knew that x-rays six months later showed a disruption of the pubic symphysis. He would not disagree with Dr Gillespie that if the tests, as described, were carried out on 15 September 1988, there was no complaint of increased pain and the doctor could not feel any excessive lateral gap at the pubic symphysis and if there was no complaint by the patient of movement, grinding or rubbing together of bones on walking or other movement, he would not be critical of the treatment provided to Mrs Prosser as recorded in the Hospital notes (T 599). He also conceded that it was possible for Mrs Prosser to be suffering a vertical laxity without a lateral separation in excess of the normal range. He agreed that the vertical malalignment was very uncommon and he had not struck it in all his years of practice (T 600-601). He agreed that in some patients you can find a lateral separation within normal limits with ongoing pain for up to 6 months (T 598). 114 He was taken step by step through the clinical notes of the Hospital and on the basis of what was recorded in those notes and making a number of assumptions, which in light of other evidence in the case I regard as reasonable assumptions, he would not be critical of Dr Eagle up to 14 September for failing to diagnose the pelvic disruption, but as at the 14th he would have expected Dr Eagle to be concerned. On the same basis, that is on the basis of what was recorded in the Hospital notes and the same assumptions as before, the tests carried out on 15 September were appropriate to determine if there was a pelvic disruption (T 610), and on the basis of those tests and no positive response from the patient, he had no criticism of Dr Eagle's failure to diagnose the condition, or of the hospital's treatment of the patient (T 612) and similar considerations applied to the examination on 17 September. But he made it clear that all these answers were based on assumptions put to him and he was not prepared to accept the assumptions (T 613-4). Although he preferred immobilisation, as far as practicable, as the appropriate treatment, he accepted that there was a responsible body of opinion which took a different view, similarly as regards the use of binders. 115 Dr Ellis is a well qualified and experienced orthopaedic surgeon (Ex. D). He is familiar with the plaintiff's history because she was his patient from 1992 to 1995 and he himself operated on her symphysis pubis during that period. He believed that the history and symptoms described to him (which included a sensation of popping and snapping at the time of birth, looseness and movement and grinding of the symphysis pubis on walking or rolling over in bed, and the sensation of walking with a waddle) corresponded to a classic case of a disruption of the symphysis pubis occurring during the second stage of labour, that it also involved the anterior ligaments of the sacro-iliac joint and that the symptoms and findings at the subsequent operations excluded the condition being merely an inflammatory condition of the pubis symphysis (osteitis pubis). With his report he included two articles and quoted from one of them where the author said, "Separation of the pubic symphysis in association with pregnancy, labour and delivery is rare and frequently it is not recognised when it does occur". 116 He did not express the view that Dr Eagle was negligent and he would not be critical of her for failing to diagnose the condition because he felt that as an orthopaedic surgeon he was not a suitable person to judge the appropriate standards for a general practitioner or specialist obstetrician (T 681) and he agreed that in an earlier 1995 report he had said (at T 622), "I am not in a position to say the Dr Eagle was negligent in her conduct of the case. It is a difficult and unusual situation as is made clear by references in the literature and in particular by the report I have from Professor Marvin Tyle of the University of Toronto, Canada 17.9.92. There is a conflict of principles which presents in the treatment of these cases. 1. One wishes to get the patient moving early and this has been done in many cases and the condition has resolved. Not all cases are so successful in outcome and are left with a disability, 2. Joints that have suffered rupture of ligaments are best put at rest until the disability of the joint has been restored. I would certainly have had to examine the patient and made a clinical assessment of her before making any recommendation. In 30 years of working with the problems of fractures of the pelvis acetabuleum I have had close association with only two obstetric cases of rupture of the symphysis, which led to operation. It is not possible to say what an orthopaedic surgeon who would have been consulted by the obstetrician in this case would have said." 117 He also expressed the view that she would have complained of increased pain on palpation (eg on 15 September), but said it may have been diffuse pain over the whole of the pelvic bone (which is not large) (T 676-7) and in his experience, patients who have ruptures over that area are tender over the whole of the pubis (T 679). 118 He agreed that on the basis of no complaints other than those recorded in the notes and the tests done on the 15 September, he would not be critical of failure to diagnose at that stage, but emphasised that it was contrary to other information he had received (by which I understand he meant the history subsequently received from the patient of the popping, snapping and grinding, looseness, waddle etc) (T 661). He favoured complete bed rest for treatment of the condition which he was satisfied (in the light of history given to him by the plaintiff and subsequent events) the plaintiff was suffering from (T 664), but he agreed there were different views on this matter (T 683). If the tests of 15 September were carried out with no elicitation of increased tenderness of the joint, he would not be critical of the management of the plaintiff by the hospital (T 665). 119 Dr Paul Smith is an orthopaedic surgeon specialising in injuries and surgery to the pelvic area, particularly arising out of trauma (T 692), and has not dealt in his practice with any after birth obstetric cases (T 707). He was satisfied that the birth of Jordan was the cause of the disruption of the plaintiff's pubic symphysis, and that quite a wide separation would have been necessary to disrupt the sacro-iliac joint. If x-rays had been taken earlier, they may have shown a wider lateral separation than shown on the March-May 1989 x-rays because of the tendency of the ligaments to spring back (T 693), although the x-rays taken show the lateral separation at the top of the pubis to be "pretty normal width", whilst that at the bottom is probably just slightly greater than normal, but the vertical asymmetry of the weight bearing x-rays concerned him (ibid). 120 He considered the clinical picture shown on the x-rays to be consistent with the history he had been given and consistent with an "open book" pelvic injury, such as would cause a patient to complain, not just of focal pain at the symphysis pubis, but also of general pain including pain anteriorly through the pelvic floor and posteriorly at the sacro-iliac joint (T 694), and including also the lower back and hips (T 695). 121 He was referred to the tests done by Dr Eagle on 15 September and said that on the doctor palpating the front of the pelvis he would expect a complaint of increased pain at the joint of the symphysis pubis, but in the case of the hip spring tests and on abducting the leg, he would regard a response of generalised pelvic pain as a positive response (T 696, 703-706), and he would be surprised if there was not pain on direct palpation of the symphysis pubis if it was disrupted (T 729). 122 If he received a positive result to his tests for pelvic instability, as an orthopaedic surgeon he would then have plain x-rays done to see if there was a wide opening of the symphysis. Although such x-rays taken in September 1988 may or may not have shown a greater widening at the front then those taken in March/May 1989, he believed they would have shown the widening of the sacro-iliac joint (T 696). He would not have had stress x-rays done at that stage and so would not have seen film of the vertical malalignment (T 697). 123 If no pathology was seen on the x-rays he would have treated it as ligamentous pain and required strict bed rest with no toilet privileges until the patient was comfortable (T 697), and if a disruption was shown, he would as an initial step have also ordered strict bed rest in the hope that surgery may be avoided (T 698). 124 In his report of 16 May 2000 he expressed the view that Dr Eagle's care of the plaintiff in the early post operative (i.e. post partum) period in not recognising Mrs Prosser's problem as being abnormal and thereby in failing to diagnose significant pelvic instability and referring on for appropriate care was unsatisfactory and not up to the standard of care which he would have expected as being of an acceptable standard. 125 That opinion, however, and the answers given by him in examination in chief, were based on information supplied to him by the plaintiff's solicitors, including complaints of popping and snapping at time of birth, grinding, looseness and movement on walking, etc (see letter from solicitors to Dr Smith dated 28 March 2000); but in cross-examination he said that on the basis that the plaintiff suffered only from the symptoms recorded in the Hospital notes, that there were no complaints of popping, snapping, grinding, looseness and only complaints of generalised pelvic pain but no complaint of focal pain at the symphysis pubis, he would not disagree with Dr Gillespie that the management provided, as recorded in the hospital notes, of gentle mobilisation fell within reasonable bounds (T 721-3). 126 I turn now to the medical experts called on behalf of the defendants. Dr James Sullivan is an orthopaedic surgeon with extensive experience in relation to pelvic trauma from motor vehicle accidents. He has also been consulted on occasions in relation to pelvic problems following childbirth and has actually treated about four cases of separation of the symphysis pubis following birth. He described the condition as rare and said (Ex. 7) that up to about 10mm of separation can occur during delivery physiologically and the discomfort associated with this usually settles over a number of days or weeks. More significant separation such as greater than 1cm is considered pathological and is associated with increased pain, tenderness and difficulty walking, whilst wider separations of more than 4 to 5cm can occur and these are usually readily evident by the associated pain and virtual inability to walk. The difference between physiological and pathological separation has been fairly arbitrarily set at 1 cm. 127 He examined the x-rays of 30 March and 16 May 1989 and concluded they showed no evidence of a diastasis (lateral separation) of the symphysis pubis and expressed the view that it was "fairly clear" that the plaintiff did not suffer a wide diastasis of the symphysis at the time of her delivery. He said however (T 1002) that the films did show a vertical malalignment on the stress tests, probably just outside the bounds of normal, but for a lady who has recently given birth and is experiencing pain in the pelvic ring, on the basis only of the films they do not indicate any problem requiring treatment. He considered that the vertical malalignment which was a couple of millimetres when standing on alternate legs did appear to be pathological, but he did not consider that binders or any other treatment would have made any difference (T 1003). 128 When the tests carried out by the first defendant on 15 September 1988 were described to him he said (T 1004) that if there was a significant separation, and by that he meant more than 2½ cm, the examiner can usually feel it and there would be tenderness at the site of the disruption and pain on springing the pelvis and increased tenderness at the joint. He was not critical of any of the treatment recorded on the basis that the tests proved negative in the manner described (T 1005). He was not in favour of bed rest in the sense of the patient lying on her back because that does not encourage closure of the symphysis. Even with a history of popping or snapping at birth, on the basis of the palpation and springing tests proving negative he would not be critical of nothing further been done for Mrs Prosser whilst she was in hospital, or of the medical practitioner (T 1009). 129 He said that examinations under anaesthesia are not commonly done and he did not believe that the vertical malalignment such as shown on the x-rays would be detectable clinically at all, externally or internally (T 1018). In the event of such a vertical malalignment during the period that the plaintiff was in the Hospital he would not intervene at all but would allow nature to take its course because usually such a malalignment settles down without the need for any intervention (T 1019-20). 130 He seemed to be saying (T 1037) that there could have initially been a lateral diastasis which closed over time to a normal position, but because of vertical movement and an injury to the left sacro-iliac joint at time of the diastasis, one could later see the abnormalities that were seen on the x-rays; that is, that ongoing instability could have made it worse than it was initially. 131 In cross-examination he said that Dr Ghosh's notes did not indicate any examination of the pubic symphysis. He considered that if the tests done on 15 September were negative, this would indicate that there was not a major diastasis at birth, as such examination would have detected it; but if the complaints of pelvic pain and at least some difficulty in walking persisted, then at some point in time an x-ray would have been appropriate (T 1038). 132 Dr Andrew Childs, who is a specialist obstetrician and gynaecologist and was Director of Obstetrics and Gynaecology at King George V Memorial Hospital for Mothers and Babies from 1985 to 2000, furnished a number of reports. In his first report of 11 October 1995 he referred to the examination carried out by Dr Eagle on 15 September which he described as a careful examination of the patient and he noted the doctor arranged for the physiotherapist to see her. He was not convinced that an x-ray or consultation with an orthopaedic surgeon at that stage would have affected the ultimate outcome. He considered none of the treatment inappropriate and he could find nothing in the notes to suggest negligence or neglect by Doctor Eagle or the Hospital. He also observed that the haematoma that was developing would certainly have contributed to some of the discomfort and probably was responsible for the fever that was reported the day before discharge. 133 In his report of 13 November 2000 he expressed the view that the treatment and management was appropriate and pointed out that there was clearly recognition of the pelvic discomfort, Dr Eagle commented on this being due to ligamentous pain, appropriate analgesia was prescribed and consultation with the physiotherapist arranged. He considered this appropriate management for the condition of separation of the pubic symphysis, and it would not be his practice to recommend x-ray or other diagnostic assessment of the pelvis at such time. The usual treatment for pelvic ligament pain involving both the symphysis and the sacro-iliac joints is to reduce activity and encourage the patient to rest on her side, use analgesia, avoid specific movement especially abduction of the thighs and sometimes an external binder around the pelvic girdle is advocated, the general thrust of management being to await spontaneous resolution which usually occurs over a period of time as the Relaxin level in the bloodstream gradually decreases. 134 He referred also to the post natal check-up on 28 (sic) October. He considered it "very appropriate" for Dr Eagle to reassure the patient on that occasion, as the general course of events is that this pain will dissipate with time. He noted that Dr Ghosh a specialist obstetrician did not see the need to refer the patient for orthopaedic consultation, a course with which he agreed. It would be his practice to wait at least 6 months with conservative treatment before taking any further action unless there was totally immobility of the patient, and she was unable to cope with her daily chores. He did not consider that the referral for x-ray or orthopaedic opinion would have varied the long-term outcome in any way especially in the first 2 months post partum. In a further report also dated 13 November 2000 he referred to a lazy bowel problem since birth, the history of trauma in the rectal area and the possibility of related psychiatric problems. 135 In his oral evidence he described the appropriate tests before diagnosis of a disruption of the pubic symphysis and said that the clinical findings found by Dr Eagle in her tests on 15 September would make the diagnosis of separation of the symphysis pubis very unlikely (T 1055). He considered the treatment given in the Hospital appropriate and he would not have ordered an x-ray or an internal examination under anaesthetic (T 1059-60). He said that if, in addition to the clinical findings, there had been complaints of grinding or rubbing this would tend to sway his opinion towards separation of the pubic symphysis (T 1061); but as at 17 September it was reasonable to deal with one problem i.e. the haematoma, at a time (T 1060, 1064). 136 He further said that if there were complaints of grinding and rubbing the possibility of an x-ray could have been considered and the patient would be taught to ambulate so as not to cause too much discomfort, because he would still expect that in time the condition would improve spontaneously. He would only very rarely recommend bed rest, and never total bed rest; but would encourage his patients to lie on their sides for increased comfort (T 1061-2). 137 In relation to the six week visit on 20 October, he considered that it was reasonable to reassure a patient who is improving that she is likely to improve further, particularly in view of the fact that in the meantime the patient had been under the care of a specialist obstetrician in Baringa Hospital with the opportunity to have any unusual problems sorted out; but he did say that if on 20 October she was continuing to complain of immobility or grinding of bones in the pubic area upon walking or other movement, he would then have sought the assistance of an orthopaedic surgeon (T 1069). 138 Finally in re-examination he said (T 1106) that if the palpation and other tests as described had been performed on 15 September and there was pain across the whole of the pubic area without increased pain or tenderness over the symphysis pubis but, having referred the patient to the physiotherapist, the latter told the doctor that the patient was particularly tender over the pubic symphysis, he would be concerned, and would want to repeat his physical examination and see if he agreed with that assessment or not, although it would depend to a degree on how well he knew the physiotherapist and of her degree of experience in obstetrics and gynaecology. However, having regard to the diagnosis of the paravaginal haematoma and the referral on to a specialist obstetrician, although he might do something different, he would not be critical of a general practitioner with Dr Eagle's qualifications in obstetrics in terms of exercising reasonable care and skill, and it would not be unreasonable to manage the patient the way she did without going back to carry out a further clinical examination. He said that if the physiotherapist said that she was a little tender across the symphysis pubis, but she thought it was within physiological bounds, he would find it reassuring if he was the general practitioner and such comments would not cause him to rush away and do anything different to what actually was done (T 1108-9). 139 Dr Andrew Korda is a specialist obstetrician and gynaecologist with considerable experience. His report of 3 October 2000 (Ex. 11) contains an extensive history of the plaintiff's obstetric, urinary and bowel symptoms and complications both before and after the birth of the child Jordan. 140 He said that as the treatment for pubic symphysis pain is almost always conservative, performance of a pelvic x-ray was not indicated, that it would not have altered the management plan for the plaintiff and, as the condition rarely requires surgery, referral to an orthopaedic surgeon was not indicated. As the aim of the treatment is to avoid abduction of the hip joint and encourage immobilisation of the pubic symphysis joint, avoid prolonged weight bearing and stairs and keep the legs together in activities such as turning in bed or getting into a car, it is not necessary to have absolute bed rest and it is equally unnecessary to use pelvic binders. He considered the discharge from hospital and the examination on 20 October appropriate and also said that on the balance of probabilities there would have been no difference to the outcome to Mrs Prosser whether she was referred to an orthopaedic surgeon following the post natal check-up or 6 months later. 141 In his oral evidence Dr Korda said that it is sometimes very difficult to distinguish an episode of normal relaxation of the symphysis pubis as opposed to a partial separation which constitutes a problem because of the variable pain thresholds of people complaining of symptoms, but the distinguishing features are usually pain in the area of the pubic symphysis and on both sides of the pelvis radiating down the legs and pain in the back; and that if on testing the pelvic area all one elicits from the patient is generalised tenderness across the pubic bone and in the pubic outlet area that would indicate a fairly minute degree of separation and one which would not be of major clinical concern. He said that a painful coccyx following delivery of a child just under 10 pounds is extremely common and one would expect painful ligaments in the back of the pelvis. 142 He was taken to the Hospital notes from the birth up to 14 September and agreed that the symptoms recorded there were all consistent for that period of time with the birth of a large child, perineal bruising arising from the second degree tear and a sore coccyx, and that the treatment given by Dr Eagle up to that time was within the bounds of reasonable care. He was then taken to the tests carried out by Dr Eagle on 15 September and the plaintiff's response thereto, and expressed the opinion that such tests did not require a diagnosis of separation of the joint of the symphysis pubis because there was no localised tenderness of the symphysis pubis "which is the most important sign" (T 1151-2) and that the combination of the pain across the whole of the pubic bone, across the back, the bilateral hip pain radiating to the knees, the second degree perineal tear as a result of a large baby, and the vaginal perianal haematoma, made it considerably harder to make a diagnosis of separation of the symphysis pubis (T 1152). 143 In addition he was asked about the leg abduction tests described by Mrs Prosser but not recalled by Dr Eagle and he said that under those circumstances there would be enormous strain on the ligament which joins the two pubic bones (i.e. the symphysis pubis) and one would anticipate that doing that test would create severe pain and tenderness in the symphysis region and in the ligament. 144 In light of all the matters recorded in the Hospital notes he had no criticism of Dr Eagle up to the date of discharge (T 1154). He also had no criticism of Dr Eagle in her examination of the plaintiff on 17 September and the referral to Dr Ghosh with him being informed of the history of generalised pelvic pain from delivery and bruising of the buttocks (T 1157-8) and he would have regarded it the responsibility of the specialist obstetrician in those circumstances to drain the haematoma and determine the cause of the pelvic pain (T 1158). 145 In relation to the examination of 20 October 1988 he said that if a bimanual vaginal examination was undertaken and there were any significant problems at that time in the joint of the symphysis pubis, he would have expected the examination to elicit complaints of tenderness in that area with maximal tenderness at the joint (T 1162-3). 146 In the event of there being a diastasis or disruption of the pubic symphysis, his recommendation would be for the patient to be reassured that the injury was not permanent, that conservative treatment almost always works, and that the treatment includes pain relief, modification of certain movements such as avoidance of separating the legs too far or which increase the shearing movement of the symphysis pubis, and he gave an example about keeping the legs together when getting in and out of a car. He would not recommend complete bed rest because of the necessity to avoid the possibility of deep vein thrombosis (T 1164-5) and he has never personally used pelvic binders because their use is likely to increase blood clotting (T 1166). DISCUSSION 147 Therefore, of the orthopaedic surgeons, on the basis of the complaints recorded in the Hospital notes, Dr Gillespie and Dr Sullivan were not critical of Dr Eagle or of the Hospital, although Dr Sullivan went further and said that even with a history of popping or snapping at birth he would not be critical up until the time the plaintiff left the Hospital; Dr Ellis did not feel competent to express an opinion as to the standards expected of a general practitioner and Dr Paul Smith was critical of the first defendant. Of the specialist obstetricians, Professor Mackay and Dr Barnes were critical of the plaintiff, whilst Dr Childs and Dr Korda were not. 148 Professor Mackay has had a long experience in training medical students and no doubt it is important to emphasise to them the importance of taking detailed histories, recording clinical examinations and ordering whatever investigative procedures may be indicated, and I got the impression that he was advocating the ideal way of dealing with the patient in view of what he had learned from examination of the x-rays taken 6 months later. That however is not the standard. Dr Eagle is to be judged, not by the standard of a professor of obstetrics and gynaecology teaching his students the ideal standard they should seek to attain but as a general practitioner with a Diploma in Obstetrics, without the benefit of hindsight by reference to the x-rays which were ultimately taken six months later. 149 Dr Barnes agreed that the tests carried out by Dr Eagle on 15 September were the appropriate tests and said that if no positive response to specific pelvic pain at the pubic symphysis was elicited, it would be hard to be critical; but added that such results "did not add up" in the light of what the x-rays in March and May 1989 showed and the history given to him of the patient's complaints of popping or snapping at the time of birth and subsequent symptoms of grinding, rubbing, movement etc. 150 Dr Childs and Professor Mackay did raise a query about the appropriate course following the discussion between Dr Eagle and the physiotherapist, and I shall return to this later. 151 That leaves the general practitioners. Dr Quach was critical of the first defendant for not having ordered an x-ray when the plaintiff's pain persisted after 4 days to exclude separation of the pubic symphysis but his main reasons for doing so appeared to be to avoid litigation rather than because he really thought it necessary. Dr Close on the other hand, who had virtually the same qualifications and experience as Dr Eagle, said that having regard to the generalised complaints of pain as recorded in the Hospital notes, although she regarded the plaintiff's overall standard of care from the defendants as "suboptimal", she would not be critical of Dr Eagle for failing to diagnose pelvic instability as at 15 September 1988 or indeed up to and including 17 September, after which she would have regarded it as the responsibility of Dr Ghosh, as the specialist to whom Dr Eagle referred the plaintiff. She agreed that in retrospect it would be difficult to say how long it would have taken her if she had then been Mrs Prosser's doctor, to diagnose the nature and extent of the injuries. 152 A number of experts agreed that the haematoma with its developing abscess would have made it more difficult to diagnose the condition, and also some of the witnesses expressed the view that x-rays should have been taken earlier, others could not say whether x-rays if taken in September 1988 would be likely to have shown anything significant. As to the appropriate treatment for the condition, opinions varied considerably from total bed rest to encouraging gentle movement with appropriate measures to restrict pain. FINDINGS 153 Although some time was spent at the hearing considering what tests could or should have been done on 11, 12, 13 and 14 September 1988, I am satisfied that for all practical purposes the relevant considerations in relation to diagnosis are the tests that Dr Eagle carried out on 15 September, 4 days after the birth of the plaintiff's child, and the position when the plaintiff visited the first defendant's surgery on 17 September and 20 October 1998. 154 At 15 September Dr Eagle was aware, from speaking to the plaintiff, perusal of the nursing notes and her own knowledge, that the plaintiff had 4 days previously given birth to a large baby in what I am satisfied can fairly be described as a normal vaginal delivery, although the child was large and there had been a second degree tear of the perineum which had been appropriately stitched. The plaintiff had complained of severe coccygeal and back pain, general pelvic pain, she was bruised in the anal and buttock areas, she had had difficulty handling the baby because of discomfort, she had been ambulating slowly and only to the bathroom, she needed help in changing the baby, was unable to sit on her buttocks and had complained of bilateral hip pain radiating to the knees, and was suffering pain when walking. I am not satisfied on the balance of probabilities that Dr Eagle was aware that the plaintiff had felt a popping or snapping sensation at the time of birth and I am not satisfied that the plaintiff had complained either to Dr Eagle or to any of the nursing staff that she felt a grinding or rubbing sensation, or that she felt rocking, looseness or movement of her pelvis when she walked. 155 Dr Eagle was however concerned with the continuing complaints of pain and the plaintiff's complaints of difficulty in walking, and accordingly on 15 September she conducted a series of tests, in particular with the plaintiff lying on her back she palpated the top of the front of the pubic rami using both thumbs from one side to the other which included the symphysis pubis, and when doing so asked the plaintiff if she felt any pain and where was the pain, which elicited the response that it was sore and painful everywhere, but there was no complaint of specific localised or focal pain over the symphysis pubis as opposed to the whole of the pelvic area. She then carried out what are known as the "spring tests", namely with the plaintiff lying on her back pushing both wings of the thigh towards each other simultaneously and then likewise pressing both wings down, in effect away from each other. Although both these tests elicited pain, the pain was generalised and was not focal to the symphysis pubis. Although Dr Eagle cannot recall doing it, I am satisfied from the plaintiff's evidence that with the plaintiff lying on her side with her leg bent the first defendant abducted the plaintiff's leg (or both legs) and once again, although there was a complaint of pain, it was not localised or focal. She also observed the plaintiff walking, looking for a waddle, which she did not see. 156 In the light of these results Dr Eagle concluded that a diastasis of the pubic symphysis was not the cause of the plaintiff's continuing pain. Within 24 hours the plaintiff developed a temperature but, contrary to Dr Eagle's wishes or advice, insisted on going home. When she saw Dr Eagle again on Saturday 17th Dr Eagle carried out an internal examination which disclosed an abscessed haematoma. She therefore made arrangements for the plaintiff to be admitted to Baringa under Dr Ghosh for drainage of the abscessed haematoma, which operation was carried out on Monday 19th. On her admission, Dr Eagle noted as part of the 'History of the Present Illness', the delivery of the 9 pound 15 ounce baby on 11 September and "severe pelvic pain post delivery, bruising of buttocks ++" as well as a reference to the haematoma, and in his pre-operation notes Dr Ghosh also noted an injury to the pelvis during a spontaneous vaginal delivery. 157 All the doctors who gave evidence had access to the x-rays taken in March/May 1989 which showed the vertical malalignment and the erosion of the left side of the pubic symphysis and also the widening of the left sacro-iliac joint, but of course Dr Eagle did not have the benefit of these 1989 x-rays when she carried out her examination on 15 September 1988. Obviously when the plaintiff was having difficulty walking 6 months after the child's delivery, one would carry out a lot more tests and be a lot more concerned than when the plaintiff was having difficulty walking 4 days after the birth. 158 Dr Eagle was not a specialist obstetrician and gynaecologist but was a general practitioner who held a Diploma in Obstetrics and Gynaecology (a lesser qualification in that field), and although aware of the condition of disruption of the pubic symphysis from her training, she had never actually come across such a case in practice. This is not surprising as the condition is comparatively rare, even amongst the specialists; and this appears to have ultimately manifested itself as a case of vertical malalignment rather than lateral widening of the symphysis, a condition which Dr Barnes, for example, had not previously seen in his years of practice. 159 Dr Eagle is not to be judged by the standards of a specialist obstetrician or an orthopaedic surgeon. The witness with the qualifications most akin to Dr Eagle was Dr Close and she was not critical of the first defendant's treatment of the plaintiff. Although this opinion is not conclusive, it is in my view significant; and I note that Drs Gillespie, Sullivan (orthopaedic surgeons), Child and Korda (specialist obstetricians) were also of the opinion that Dr Eagle's care and treatment of the plaintiff was proper and appropriate. She adverted to the possibility of disruption of the pubic symphysis, did the appropriate tests and got a negative result. 160 The evidence satisfies me that she was appropriately concerned that there may have been a problem with the pubic symphysis, that the tests that she carried out on 15 September were the appropriate tests, and there was no evidence that they were not carried out properly. The expert evidence is that for a diagnosis of a disruption of the symphysis pubis one would expect a patient to complain of localised focal pain at the symphysis on the carrying out of such tests, and not of general pain throughout the whole of the pelvic area, and it seems that the haematoma, which at that stage was developing an abscess, was causing generalised pain and thereby masking the focal pain that might have elicited a positive response; but the fact remains that according to the expert evidence the appropriate tests were carried out and the response to such tests was negative. In those circumstances I fail to see how it could be said that the first defendant failed to exercise the degree of care and skill expected of a person of her qualifications and experience, namely a general practitioner holding a Diploma in Obstetrics and Gynaecology. 161 Dr Eagle also observed the plaintiff walking and, in spite of the plaintiff's claims that she was waddling, did not observe a waddle. If the doctor was concerned about the possibility of a diastasis of the pubic symphysis to the extent that she was carrying out the appropriate tests and was examining the plaintiff's walk to see if she did waddle, I doubt that she would have failed to detect such a waddle if it was apparent; or would have ignored it if she had observed it, particularly as the so-called waddle was not unfamiliar to her as it is not infrequently observed in antenatal patients in the latter stages of pregnancy as the symphysis stretches prior to the birth. 162 In those circumstances, I am not satisfied that Dr Eagle failed to exercise the standard of care proper to a person of her qualifications and experience in failing to diagnose the disruption of the pubic symphysis on 15 September 1988, or in failing to order an x-ray at that stage. 163 The plaintiff's main submissions appeared to be that the x-rays in March showed she had the disruption, therefore it must have been present in September, therefore either the tests carried out on 15 September were not done properly or otherwise the results were not properly heeded. In view of the descriptions of the tests given by Dr Eagle (confirmed to a large degree by the plaintiff) the expert evidence that they were the appropriate tests and how they should be interpreted, I am not prepared to accept that proposition, particularly as it now appears that the abscessing haematoma may have masked the true results. 164 It was further submitted that the plaintiff's symptoms and complaints cannot be limited to those appearing in the Hospital notes because those notes are inaccurate and incomplete; but for reasons previously given, this has not been established. 165 Although Dr Eagle said (T 931) that in hindsight a stress test with the plaintiff standing on one leg at a time would have been useful and Dr Close said she would have done such a test, as she did in March 1989, I do not consider Dr Eagle can be held in breach of her duty of care on this ground alone in circumstances where none of the specialists said such a test should have been done at that time, the evidence does not clearly establish what such a test would have shown at that time, and Dr Close, who overall was not critical of the first defendant, said that she did not know how long it would take her to diagnose the plaintiff's condition if she had been in the position of the first defendant. 166 Moreover, a number of factors including the detailed evidence from the specialists, at times conflicting, the rarity of the condition, the fact that this plaintiff appears to have had a vertical malalignment rather than a lateral one although there apparently may at some stage have been a lateral disruption as well, the fact that, as I find, Dr Eagle was not aware of the popping or snapping at birth or the grinding, rubbing or looseness on movement, render it impossible to say that the mere fact of non-diagnosis within 7 days of the birth by a general practitioner (not a specialist) of itself establishes a failure to exercise reasonable care and skill on the part of the general practitioner. The test is not whether anything more could have been done, but whether what was done fell below reasonable care and skill for a person in the position of the first defendant. 167 I have given particular attention to whether, having done the appropriate tests on 15 September with negative results, it was incumbent on the plaintiff after speaking to the physiotherapist (Mrs Muir) and being told that the latter found the plaintiff "tender" (or a "little tender") over the symphysis pubis, to go and do the tests again; and Dr Childs at one stage said this would cause him to be concerned and to repeat his examination, although his later answers were more equivocal. Professor Mackay was also critical of the first defendant in this regard. 168 The fact that the doctor made the enquires of the physiotherapist shows she was concerned for her patient but Mrs Muir said (according to Dr Eagle) that she thought it was physiological and Mrs Muir was encouraging the plaintiff to ambulate. 169 Whatever may have been the position if the abscess of the haematoma and referral to Dr Ghosh and Baringa had not occurred within 2 days may be a matter of speculation; but I do not consider that the remark made by Mrs Muir in answer to the doctor's question, and bearing in mind that the response was to the effect that it appeared physiological, was sufficient to require the first defendant to promptly go back and repeat the tests she had only recently done. Indeed the probability is that if she had repeated the tests she would have got the same result. 170 It is also significant in my opinion that, although she claims to have had the pain, the grinding and looseness sensations and the difficulty walking, as well as a high temperature, and the results of the tests which had been done were not yet available, the plaintiff, contrary to Dr Eagle's advice, insisted on going home on 16 September, thereby virtually taking the matter out of Dr Eagle's hands. Admittedly she returned to Dr Eagle's rooms on 17 September, but at that time the abscessed haematoma was the major symptom and Dr Eagle appropriately referred her on to Dr Ghosh, and so did not have any further opportunity to do further tests or make any further diagnosis in the ensuing days or weeks. 171 On Saturday 17 September the plaintiff came to see Dr Eagle at her rooms complaining of a great deal of pain, but I am not satisfied that she had the degree of difficulty which she claims getting up the stairs. Dr Eagle carried out an internal examination and correctly diagnosed an abscessed, perineal haematoma. She then arranged, again correctly, for the plaintiff to be referred to a specialist obstetrician (Dr Ghosh) for this to be surgically drained, and probably over the telephone, and certainly in the written Admission Notes at Baringa, notified him of the delivery a week earlier of a large baby and severe pelvic pain post delivery and bruising of buttocks. In my opinion, she was entitled to assume, as Dr Ghosh agreed, that he would take over the care of the plaintiff in all matters arising out of the birth of the child. 172 Whilst she was in Baringa there were no complaints of pain specifically related to the symphysis pubis although Dr Ghosh's own notes record complaints of sore pelvic girdle and suprapubic tenderness. He carried out a number of physical examinations, but did not look for or find a disruption of the pubic symphysis. 173 I am satisfied that the referral of the plaintiff to Dr Ghosh was quite proper and as he (a specialist obstetrician) failed to diagnose the disruption, even after the drainage of the haematoma, it is difficult to see how the first defendant can be criticised for not doing so before it was drained and whilst the abscess was apparently developing. 174 I turn to the position at the time of the post natal check-up on 20 October. I am satisfied that on that occasion the plaintiff was able to come upstairs to the first defendant's surgery, and get onto the examining couch without assistance. The paravaginal haematoma was settling well as noted by Dr Eagle, the uterus had returned to its normal place as found by the doctor's bimanual examination and the plaintiff complained that she still had some pelvic tenderness, although it does not seem to have been the major focus of her concern. In these circumstances I cannot see any indication for any further physical examination such as was carried out on 15 September and (apart from Dr Quach, who would again have ordered an x-ray (T 348) and Professor Mackay) the expert witnesses do not criticise the reassurance given by the first defendant on that day. The plaintiff had no recollection of complaining about any pelvic symptoms when she saw Dr Eagle in November 1998 on account of her constipation, and Dr Eagle has no note of any such complaint. 175 As to the plaintiff's case against the Hospital concerning the treatment she received, not only could there be no treatment specifically directed to disruption of the pubic symphysis until there had first been a diagnosis, but the expert medical opinions varied as to the appropriate mode of treatment from complete bed rest to gentle ambulation, avoiding specific movements and/or strain, along with reassurance and encouragement to, at the other extreme, doing nothing in particular. In the light of such divergent opinions held by respectable schools of opinion I cannot say the treatment or management of the plaintiff by the Hospital gave rise to a breach of its duty of care. CONCLUSIONS 176 For these reasons I am not satisfied that the first defendant in her care and treatment of the plaintiff in the period from the birth on 11 September 1988 to the post natal check-up on 20 October 1988 failed to exercise the skill and care proper for a medical practitioner of her qualifications and experience, and accordingly she was not in breach of the duty of care she owed the plaintiff. Likewise I am not satisfied that the second defendant failed in its duty of care during the time she was a patient in its Hospital. 177 Accordingly, I direct the entry of judgment for the defendants, and I reserve the question of costs. *************** Last Modified: 05/30/2002 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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