Knight v Stocken [2002] NSWSC 1161

New South Wales Supreme Court

CITATION : Knight v Stocken [2002] NSWSC 1161 FILE NUMBER(S) : SC 20738/94 HEARING DATE(S) : 11 - 15, 18 - 20 November 2002 JUDGMENT DATE : 6 December 2002

PARTIES : Catherine Knight - Plaintiff Dr Robert Stocken - Defendant JUDGMENT OF : Simpson J

COUNSEL : I Ryan - Plaintiff SR Donaldson SC - Defendant SOLICITORS : James Papas & Associates - Plaintiff Blake Dawson Waldron - Defendant CATCHWORDS : professional negligence - discharge of duty of care - information about potential risks - laparoscopic sterilisation - personal injury - classification of risk as "material" - nature and cause of present condition - expert medical opinions - failure to warn Rogers v Whitaker (1992) 175 CLR 479 CASES CITED : Chappel v Hart [1998] HCA 55; 195 CLR 232 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 DECISION : Verdict for the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

SIMPSON J

6 December 2002

20738/94 Catherine Jody KNIGHT v Robert STOCKEN

JUDGMENT 1 HER HONOUR: In these proceedings the plaintiff, Catherine Jody Knight, claims damages against the defendant, Dr Robert Stocken (a specialist obstetrician and gynaecologist), arising out of medical treatment that she alleges was negligently administered by him in October 1991. The plaintiff also sues in contract, but no additional issues arise thereby. 2 The factual issues are relatively complex. The plaintiff was born on 2 August 1966. She married in 1989 and had two children, born, respectively, in 1989 and 1991. After the birth of their second child, the plaintiff and her husband decided that they required permanent contraception. After consultation with their general practitioner, Dr Robert Florida, they were referred to the defendant. On 10 October 1991 the defendant performed a laparoscopic tubal ligation at the Hornsby and Ku-Ring-Gai Hospital. 3 The plaintiff alleges that the defendant failed to administer the treatment with the requisite care and skill, and, accordingly, failed to discharge the duty of care which he undoubtedly owed to her. She does not allege that the surgery itself was carried out negligently. Although the breaches of duty alleged are particularised in a variety of ways, the allegations essentially break down into two principal categories. First, the plaintiff alleges that the defendant failed to give her adequate information about the potential risks of the procedure, thus precluding her from being in a position to make an informed decision as to whether to undergo the surgery; that recognised risks of that procedure eventuated causing personal injury; and that, if she had been given full and accurate information, she would not have submitted to the procedure. Symptoms which she now suffers, which, on her case, are a consequence of the treatment, are thus causally connected to the alleged failure to give adequate information. 4 Second, the plaintiff alleges that a complication (a recognised risk of the procedure) occurred during or immediately after the surgery; that this was mismanaged by the defendant; and that, as a result of the mismanagement, she suffered personal injury. 5 A number of factual matters arise for resolution, requiring expansion of the short outline of facts given above. 6 The plaintiff was twenty-five years of age at the time of the surgery. Until then, she had been generally in good health. Relevantly, however, she had suffered right-sided abdominal pain in January 1990. For this she was referred to the defendant, who performed a diagnostic laparoscopy, which revealed no abnormality. In December 1990 and in February and March 1991 she suffered some pain in the right pelvis and hip. 7 The plaintiff attended the defendant in respect of the proposed tubal ligation initially in September 1991. It is well recognised that the surgery is of a kind that can, without fault on the part of the surgeon, cause damage to certain arteries, and that this can cause bleeding, including the development of a haematoma in the abdominal wall. At its worst, such an outcome may necessitate additional surgery. Although the risk, so far as the evidence discloses, is relatively small, and its consequences relatively easily remediable, the fact that further surgery is a possible consequence is sufficient, in my view, to warrant the classification of the risk as "material": see Rogers v Whitaker (1992) 175 CLR 479; Chappel v Hart [1998] HCA 55; 195 CLR 232; and Rosenberg v Percival [2001] HCA 18; 205 CLR 434. 8 It is, accordingly, incumbent upon a surgeon advising a patient considering undergoing such surgery to inform her of that risk, the extent of the risk, and the possible consequences if the risk eventuates. 9 The plaintiff was admitted to the Hornsby and Ku-Ring-Gai Hospital early on the morning of 10 October 1991. She signed a printed proforma of consent to the surgery, which included the following: "I have received all information sought by me concerning care and all questions asked by me concerning the proposed operation and other procedures and all questions asked have been satisfactorily answered." 10 The form also contained an acknowledgment of consent to the procedure, which was identified as: "dilation and curettage of uterus, laparoscopic tubal occlusion with clips",