Booth v Di Francesco [2003] NSWSC 378

New South Wales Supreme Court

CITATION : Booth v Di Francesco [2003] NSWSC 378 HEARING DATE(S) : 3 February 2003 - 21 February 2003 JUDGMENT DATE : 6 May 2003

JURISDICTION: Common Law Division Professional Negligence List JUDGMENT OF : Dunford J DECISION : Judgment for the defendant.

CATCHWORDS : NEGLIGENCE - medical practitioner - hysterectomy - whether medical practitioner sufficiently advised plaintiff of her condition and options available. CASES CITED : Abbas v Kenney [1996] 7 Med LR 47 PARTIES : Margaret Booth (Plaintiff) Anthony Di Francesco (Defendant) FILE NUMBER(S) : SC 20152/2000 COUNSEL : M Williams SC / E Cox (Plaintiff) S Donaldson SC (Defendant) SOLICITORS : Charlton Shearman (Plaintiff) Blake Dawson Waldron (Defendant)

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

DUNFORD J

Tuesday, 6 MAY 2003

20152/00 Margaret BOOTH v Anthony DI FRANCESCO

JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff claims damages for the loss and damage she claims she suffered as a result of the alleged negligence of the defendant gynaecological surgeon in relation to a hysterectomy of the plaintiff carried out 21 July 1994. 2 The plaintiff was born on 24 November 1944 and was accordingly aged 49 at the time of the hysterectomy. She left school at age 15 after completing only one year of high school and from then until she was married at age 23 she worked in regular employment as a shop assistant. She was married in 1968, aged 23, but the marriage ceased in 1975. She has not worked in paid employment since her marriage. 3 She gave birth to a healthy daughter by caesarean section with no complications on 26 September 1968, but during her second pregnancy in 1971 she developed a Bartholin's abscess and at 37 weeks she was admitted to Royal Prince Alfred Hospital for incision of the abscess. She haemorrhaged and gave birth to a stillborn child by caesarean section on 17 March 1971 and was discharged home on 31 March 1971. She was re-admitted to Royal Prince Alfred Hospital on 11 April 1971 for recurrent Bartholin's abscess which was drained on 15 April 1971. 4 Following this she had a number of admissions to, and attendances at, hospital. She complained of hypogastric, epigastric and lower chest pain, and on 23 February 1972 underwent a coeliac arteriogram which noted, "slight narrowing of the coeliac artery" (pinched artery). On 25 March 1976 she underwent a bilateral submucosal nasal cautery at Sutherland Hospital, and from January 1972 to March 1975 she regularly attended the Psychiatric Outpatient's Clinic at Royal Prince Alfred Hospital (she said she was very depressed after losing the baby) and the clinical notes record a number of personality and psychiatric symptoms. 5 In 1976 she was again complaining of epigastric pain when the provisional diagnosis (9 June 1976) was "probable recurrent coeliac artery compression, personality disorder". 6 Between 1977-1982 she had IUDs replaced five times with the usual curettage (D&C) which went with them. On 8 January 1975 she had a pregnancy terminated during which the fundus of her uterus was perforated. There is then, apart from the IUDs, something of a gap until July 1985 when Dr Solomon, who had been her regular gynaecologist since the stillbirth pregnancy carried out a D&C and anterior vaginal repair with insertion of a cystocath. The symptoms which led to this procedure was stress incontinence of urine, and the laparotomy to repair resulted in a uterine perforation. Once again the clinical notes referred to a "personality disorder". 7 She ceased seeing Dr Solomon in late 1985 when a friend took her to Dr Melov, a general practitioner, when she was complaining of lower abdominal pain, and Dr Melov referred her to the defendant whom she first consulted in early 1986. 8 In a letter to Dr Melov dated 7 March 1986, Dr Di Francesco expressed the view that she probably had pelvic inflammatory disease (PID) as well as multiple adhesions. He obtained a report from Royal Prince Alfred Hospital which noted her 21 previous admissions and a copy of the discharge summary of her 1975 admission which included a diagnosis of "personality disorder". 9 She continued to see the defendant and other doctors, and had a number of admissions to hospital for a wide variety of complaints, not all of them gynaecological or urological, as summarised in Ex. B. She said that early in their relationship the defendant told her he would never operate on her, and when she was in Sutherland Hospital complaining of lower abdominal pain in March / April 1986, the defendant visited her in hospital along with Dr Yee (a general surgeon) and he discussed the possibility of a hysterectomy, but the two doctors agreed that it should not be done because it would cause too many medical problems. This is consistent, so far as it goes, with the clinical notes which on admission refer to "probable hysterectomy", but after the ultrasound indicated an ovarian cyst or chronic abscess, she was commenced on Vibramycin, her symptoms gradually subsided and she was discharged (without hysterectomy). 10 In 1986/87 the plaintiff had further urinary problems, and a bladder cystoscopy and diathermy was carried out on 18 May 1987 at Kareena Private Hospital. After various tests, Dr Millard concluded in December 1987 that she had an unstable bladder, but not stress incontinence. 11 She said in evidence that she continued up to the hysterectomy to lose small amounts of urine, but only when she coughed or sneezed. 12 On 2 November 1988 she had a lipoma, which proved to be benign, removed from her left chest wall. 13 She continued to see a number of doctors including the defendant, and was diagnosed with bladder problems, thrush, urinary tract infections, vulvitis, abdominal pain, cervical arthritis and cystitis, and in mid 1991 she had a recurrence of a Bartholin's abscess. On 15 May 1991 the defendant wrote to Dr Victor "I think she has her old problem of PID and multiple adhesions …" 14 Bartholin's abscess re-occurred in September 1993 and was drained. A histopathological report dated 13 September 1993 of vaginal lesions showed benign vaginal polyps lined by squamous mucosa with no evidence of malignancy. On 12 January 1994, x-rays showed mild arthritic changes to a number of locations including shoulders, hips, ankles and wrists and she was seen by Dr J Ditton at Royal Prince Alfred Hospital Pain Clinic. 15 In March 1994, the plaintiff attended Dr Kumar, who had taken over the general practice of Dr Melov, complaining of inter-menstrual bleeding in a form she described as "spotting". He referred her to the defendant who advised a hysteroscopy but he first required her to be seen by the rheumatologist, Dr Jeffrey Eisman, because of the possibility that she was suffering from lupus. On 8 April, Dr Eisman reported that the plaintiff did not have any symptoms suggesting of lupus and suspected that her symptoms were more related to the diffuse fibro myalgia syndrome and some osteo arthritis rather than lupus. 16 On 5 May 1994 she was admitted to President Private Hospital for her dilation and curette and hysteroscopy. The hysteroscopy report of the following day stated as follows (L 111): "Sections of the uterine curettings show fragments of endometrium in which some of the endometrial glands appear proliferative and some show evidence of early secretion, together with areas of focal adenomatous hyperplasia with no significant atypia. There is no evidence of malignancy.