PHELPS v COSSETTO & Anor [2002] NSWSC 903

New South Wales Supreme Court

CITATION : PHELPS v COSSETTO & Anor [2002] NSWSC 903 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20689/00 HEARING DATE(S) : 26/03/02-28/03/02, 02/04/02-04/04/02, 02/05/02 JUDGMENT DATE : 1 October 2002

Cheryl PHELPS (Plaintiff) v PARTIES : Dr David COSSETTO (First Defendant) & Dr Mark RYAN (Second Defendant) JUDGMENT OF : Barr J at 1

COUNSEL : Plaintiff: P Menzies QC/D Graham First and Second Defendants: P Garling SC SOLICITORS : Plaintiff: Carroll & O'Dea First and Second Defendants: Tress Cocks & Maddox CATCHWORDS : Breach of professional duty - warning of risks of surgery - whether necessary - Breach of professional duty - warning of risks of surgery - whether warning given - Breach of professional duty - advice about alternative to surgery - whether duty to explain DECISION : See paragraph 137

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

GRAHAM BARR J

Tuesday, 1 October 2002

20689/00 – Cheryl PHELPS v David COSSETTO & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff, Mrs Cheryl Phelps, sues the defendants, Dr David Cossetto and Dr Mark Ryan, for damages arising from a stroke she suffered after a surgical operation performed on 2 June 1998. Dr Cossetto is the orthopaedic surgeon who operated. Dr Ryan is the cardiologist who advised Mrs Phelps. 2 The parties have agreed about damages and the only question to be decided is whether the defendants or either of them were in breach of their duty to Mrs Phelps as her medical advisers. 3 Mrs Phelps was born on 11 July 1948. As a child she contracted poliomyelitis, which left her with a permanently weakened left side. Mrs Phelps' polio so affected her left leg that it was permanently incapable of supporting the weight of her body. In such patients a calliper is used to transfer the body weight through a rigid frame to the heel of the boot or shoe and so to the ground. The frame has to be rigid because the patient cannot control flexion at the knee joint. The frame is made of some hard material such as steel, as it was in Mrs Phelps' case. The top of the calliper comprises a ring, more or less circular, which fits around the thigh. The hard core of the ring is covered with a soft material to help spread the absorption of weight and make the calliper less uncomfortable to wear. In Mrs Phelps' calliper that material was leather. The ring, or cuff as it is known, encircles the thigh and bears weight at all parts of its circumference. However, the greater part of the body's weight is borne by a smallish part at the back of the cuff where it comes close to the ischial tuberosity, a projecting portion of the underside of the ischium, one of the bones of the pelvis. That part of the cuff is sometimes called the shelf or seat. 4 During 1993 or 1994 Mrs Phelps suffered chest pains and mitral valve disease was diagnosed. She came under the care of Dr Ryan in September 1994. In December 1994 she was admitted to Royal Prince Alfred Hospital, where an artificial mitral valve was fitted. Blood which comes into contact with such artificial devices is liable to clot and an anticoagulant has to be administered to control that tendency. Accordingly, Mrs Phelps was prescribed Warfarin. Warfarin is a long-acting drug which can be taken orally by tablet. Before Mrs Phelps could be discharged from hospital the Warfarin had to be stabilised, which is to say that her blood needed to be brought within an acceptable range of "thinness", thin enough to remove the tendency to clot but not thin enough to give rise to the risk of uncontrollable bleeding in case, say, of accident. In due course the Warfarin was stabilised and she was discharged from hospital. 5 The condition of Mrs Phelps' blood remained stable until November 1996, when she experienced a visual disturbance with severe right eye pain and what was described as "a blackness". There was right-sided weakness, mainly in the arm and hand, with some associated numbness. There was labile hypertension. She was seen by Professor John Pollard, neurologist, who thought that Mrs Phelps had suffered a stroke caused by platelet emboli from her artificial mitral valve. Her symptoms soon resolved, though when she was reviewed in February 1997 there was some residual numbness in the hand. 6 As a result of that accident Mrs Phelps was prescribed Persantin (dipyridamole) in addition to Warfarin. Persantin is a shorter-acting drug than Warfarin whose effect is to counter the tendency of blood platelets to coagulate. Persantin, too, is taken by tablet. 7 Mrs Phelps suffered bruising and pleuritic chest pain after a fall in September 1997. She came under the care of Dr Ryan once again. Those symptoms resolved. 8 By 1997 Mrs Phelps was suffering from a number of conditions and disabilities. There were the effects on her left side of polio. There was the artificial valve and the need to take Warfarin and Persantin. She had hypertension, lupus erythematosus, osteoporosis and antiphospholipid syndrome. 9 Late in 1997 Mrs Phelps noticed a lump behind her left thigh. It became painful when she put weight on the calliper. Her general practitioner, Dr Parker, referred her to Dr Cossetto. She and Mr Phelps attended Dr Cossetto's rooms on 28 May 1998. 10 The parties do not agree about everything that was said and done on that occasion and immediately afterwards and it is convenient to defer consideration of those events except to say that in the presence of Dr Cossetto and Mr Phelps Mrs Phelps signed a document entitled Request for Surgical Operation, Procedure and/or Medical Treatment and referred to by Dr Cossetto as an "informed consent". 11 Mrs Phelps entered Nowra Community Hospital on Sunday 31 May 1998. Dr Cossetto excised the lump under general anaesthetic on Tuesday 2 June. A histopathology report confirmed that it was a subcutaneous lipoma. Mrs Phelps was recovering well from the operation. However, on the morning of Thursday 4 June she complained of dizziness and acute blindness. She was resuscitated and transferred to a high-dependency ward with monitoring. A local physician managed her there. When Dr Ryan saw her later in the day she was having some difficulty with her speech. On the following day Dr Ryan noted weakness of the right hand as well as speech difficulties. All symptoms were consistent with cerebrovascular accident. 12 A rehabilitation specialist was consulted on 11 June in view of the speech difficulties and right hand weakness, which were still present. Although Mrs Phelps' condition has improved she still has difficulty remembering words and the motor function of her right side is partially impaired so that she now needs help to get into and out of a car. The loss of power in her right hand and weakness of extension at the right elbow have affected the fluency and quality of her writing. She was previously independent in getting into and out of chairs, dressing, putting her calliper on and getting it off and getting into and out of the bath, but now she needs help for these operations. Although the wound resulting from the excision of the lipoma reopened on a couple of occasions it eventually healed well. 13 The history I have so far related is uncontroversial. The dispute is as to the events which took place in Dr Cossetto's rooms during Mr and Mrs Phelps' consultation and thereafter until the operation was performed. No complaint is made about the manner in which surgery was performed or about the perioperative care given. 14 Mrs Phelps says that Dr Cossetto was negligent or in breach of his duty towards her in the following ways - (i) failing to provide her with certain information before obtaining her consent to undergo the operation;