KL v Farnsworth [2002] NSWSC 382

New South Wales Supreme Court

CITATION : KL v Farnsworth [2002] NSWSC 382 FILE NUMBER(S) : SC 20441/98 19/11/2001 20/11/2001 21/11/2001 22/11/2001 HEARING DATE(S) : 23/11/2001 26/11/2001 27/11/2001 28/11/2001 29/11/2001 7/12/2001 JUDGMENT DATE : 9 May 2002

PARTIES : KL - Plaintiff Dr Robert H Farnsworth - Defendant JUDGMENT OF : Simpson J

COUNSEL : P Menzies QC - Plaintiff P Brereton SC - Defendant SOLICITORS : David Hirsch - Plaintiff John Pavlakis - Defendant CATCHWORDS : risks and possible consequences of medical procedures - adequate information - duty to warn of reasonably foreseeable consequences - breach of duty - competing advantages and disadvantages - alternative forms of surgery - causation Rosenberg v Percival [2001] HCA 18, 75 ALRJ 734 CASES CITED : Rogers v Whitaker (1992) 175 CLR 479 S v R (1983) 33 SASR 189 Chappel v Hart [1998] HCA55; 195 CLR 232 DECISION : Verdict for the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION professional negligence list

SIMPSON J

9 May 2002

20441/98 KL v Dr Robert Farnsworth

JUDGMENT 1 HER HONOUR: The plaintiff, to whom I will refer as KL, brings these proceedings against the defendant, Dr Robert Farnsworth, claiming damages as a consequence of what she claims was negligent medical advice given to her by him in and about November 1995. KL does not claim that treatment subsequently afforded to her was negligently administered; her case is solely based upon the proposition that Dr Farnsworth failed adequately to disclose to her material matters concerning the treatment he offered her; that this led to her making a decision to accept a particular form of treatment that she would not, if fully informed, have made; and that this, in turn, caused compensable damage. 2 In brief terms the background facts are these. KL was born on 8 December 1963. At birth she suffered a rare abnormality, called "bladder exstrophy", meaning that her bladder was partly outside her body. She had some immediate ameliorative treatment, the nature of which does not emerge clearly from the evidence; in 1968, when she was five years old, she underwent surgery identified (ex C tab16) as "uretero-ileostomy". This involved the removal of a section of her right intestine (the ilea) to create an artificial urethra, called an ileal conduit. This did not create a normal urinary excretory system, which KL has never had. From the age of five KL excreted urine through the ileal conduit into a bag worn externally. Remarkably enough, and to her (and her medical practitioners') considerable credit, KL lived thereafter an entirely normal and very active life. She engaged in all normal sports; in 1981 at the age of eighteen, and in 1987, at the age of twenty-three, she gave birth to, respectively, a son and a daughter. Later in 1987 she married (the father of the two children, with whom she had had a continuing relationship). Although she appears to have been an under-achiever at school and to have abandoned formal education in 1978, after completing year 10, she was successful in a variety of employment endeavours. Her formal educational achievements do not reflect her intelligence or capacity, which are obviously significant. The family initially lived in Sydney. 3 Between 1983 and 1985, there having been advances in the medical technologies available for dealing with KL's condition, she was offered a new procedure that would possibly have obviated the need to use the bag. Because the procedure was in its early stages, there was uncertainty about its efficacy, and KL's life was not unduly impeded by her condition, she declined the surgery at that stage. 4 However, shortly after this, KL began to contract recurring urinary tract infections, necessitating, on occasions, hospital admissions. 5 KL's husband was a member of the NSW Police Service. In 1985 the family moved to Tamworth and KL took full-time employment in a local hotel as a restaurant manager/functions coordinator, and part time employment in a bowling club. Later she took work as a cosmetic consultant and was simultaneously teaching at the local TAFE college, and undertaking a teaching degree at the same college. Between 1984 and 1994 there were periods when she worked, in total, 70 or 80 hours per week. 6 In 1991 KL had further surgery, a "lithotripsy" for kidney stones. Nevertheless, she continued with her long working hours, her sporting activities and her family responsibilities. She accommodated the need to change her appliance into her daily routine. So successful was her adaptation to the ileal conduit and its consequences, that none of her friends, and none of her husband's family, were aware of her condition. Photographs (ex A) tendered in evidence support the contention that KL lived a completely normal life with no outward signs of departure from the physical norms. 7 From 1992 KL began to experience more frequent kidney-related pain and urinary tract infections. 8 In 1995, for various reasons, KL and her husband decided to move to Cairns. Both intended to undertake tertiary studies, her husband for the purpose of professional advancement in the Queensland Police Service, which he proposed to join. KL intended to seek work in Queensland. Their living expenses were such that her financial contributions were essential. This was, in part, because their son had won a scholarship to a private boarding school in Sydney, but the scholarship did not pay all of the associated expenses. 9 In August 1995, just before the planned move, KL suffered a urinary tract infection so severe as to require hospitalisation. She was referred to Dr Farnsworth who is, undoubtedly, a leading and distinguished urologist. She first saw him on 4 October 1995. On 8 October 1995 Dr Farnsworth admitted her to the Prince Henry Hospital for tests. On 9 October, following her discharge, she had a discussion with Dr Farnsworth. Precisely what took place during these discussions is one of the major factual issues raised for determination. It will be necessary to consider in detail the competing accounts given by KL and Dr Farnsworth. In short, Dr Farnsworth advised KL that, having regard to her condition, three alternative courses of action were available. The first was to do nothing, which was, it was common ground, not really an option at all. It was plain that KL confronted major abdominal surgery. The two options realistically available were a repeat of the 1968 ileal conduit, or a more recently developed procedure called urinary undiversion. Urinary undiversion involved the creation of a "neo bladder", again using part of KL's intestine. A necessary feature of the urinary undiversion was that KL would be required thereafter to "self catheterise". Two alternative methods of so doing were available, the differences between which were said to be no more than "cosmetic"; that is, there was no medical indication by which either method was to be preferred. However, the circumstances in which self catheterisation was to be performed and its overall ramifications are very relevant to the issues in contention. 10 Having considered the advice given to her by Dr Farnsworth, on 23 November 1995 KL underwent urinary undiversion. She remained an in-patient at Prince Henry Hospital until 22 December 1995, when she travelled by air to her new home in Cairns. The sequelae of the surgery has, for KL, been quite disastrous. Notwithstanding concerted efforts on the part of trained nursing staff, and on the part of Dr Farnsworth, she was unable to self catheterise. She suffered severe and constant pain. From a few days after the surgery, KL suffered from severe diarrhoea. She was incontinent of urine. There were certain complications not necessary to detail here. Many of those complications have, in varying degrees, continued. From her discharge from hospital on 22 December 1995, she remained at home in Cairns until 16 January 1996, when she was readmitted to Prince Henry Hospital. During this time she was largely confined to bed, reliant upon others, her husband in particular, for help in her daily routine and personal care. 11 On 22 January 1996 KL underwent further surgery under general anaesthetic; she remained in hospital until 13 February that year. The years since have been littered with repeated admissions to different hospitals. It will be necessary to say more about these in due course. 12 The primary question for determination is whether Dr Farnsworth gave KL adequate information about the risks and possible consequences of the urinary undiversion procedure such as to enable her to make an informed decision about her choice of surgery; if it is found that he did, that finding will conclude the proceedings in Dr Farnsworth's favour. If, however, it is found that the information given by Dr Farnsworth was not adequate, then a secondary question, of causation, arises. That question involves an assessment of what KL would have done had she been given the requisite information. This is never an easy question to resolve, because a plaintiff's evidence is, inevitably, that had he/she been fully informed of the risks of the procedure, then he/she would have opted for a different course; but that evidence (even in the case of a plaintiff whose credibility is otherwise unimpeachable) is to be approached with extreme caution, given the inevitability of the wisdom of hindsight: see, for example, Rosenberg v Percival [2001] HCA 18, 75 ALJR 734. 13 Further, it is to be borne firmly in mind that the assessment is not an assessment of what medical decision would have been in KL's best interests, taking into account all relevant considerations; it is an assessment of what decision, given correct and adequate information, she would have made in the circumstances. That question involves an evaluation of KL's character, personality and thinking. 14 It is KL's case that the urinary undiversion surgery carried with it a variety of risks and consequences which, had she been aware of them, would have been material to her election, that Dr Farnsworth was under a duty to explain them to her, and that he failed to do so. The risks and consequences upon which KL relies are identified as: (i) possible change in bowel habit, including the possibility of diarrhoea; (ii) a risk of continuing incontinence; (iii) a need for further and/or repeated follow up surgery; (iv) the need to self catheterise following urinary undiversion itself involved a procedure which was inconvenient, embarrassing and difficult; (v) possible recurrent urinary tract infections; (vi) possible problems caused by mucus formation.