Perry v Dr Lennox [2012] NSWSC 207

Supreme Court New South Wales

Medium Neutral Citation: Perry v Dr Lennox [2012] NSWSC 207 Hearing dates: 5-9 March 2012 Decision date: 09 March 2012 Jurisdiction: Common Law Before: Harrison J Decision: Question allowed Catchwords: PROCEDURE - pleadings - evidence - relevance - whether question asked in cross-examination arises on the plaintiff's pleaded case - question allowed Legislation Cited: Civil Liability Act 2002 Category: Procedural and other rulings Parties: Robyn Perry (Plaintiff) Dr Haig Lennox (First Defendant) Dr Phillip Stephens (Second Defendant) Tamara Private Hospital (Fourth Defendant) Representation: P R Hennessy SC with E G Romaniuk (Plaintiff) G M Gregg (First Defendant) A J Black SC (Second Defendant) J Downing (Fourth Defendant) Edwards Michael Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) TressCox Lawyers (Second Defendant) HWL Ebsworth Lawyers (Fourth Defendant) File Number(s): 2008/289431

Judgment 1HIS HONOUR : In 1999 Mrs Perry underwent surgery for which she was anaesthetised by epidural block. Following that surgery, Mrs Perry observed that the effects of the epidural "took a long time to wear off". For present purposes it remains to be determined whether the effects of the epidural of which Mrs Perry complained lasted "a few hours" or something approaching 24 hours. 2In 2006 Mrs Perry underwent bilateral knee replacement surgery. Dr Lennox performed that orthopaedic procedure and Dr Stephens was the attending anaesthetist. Mrs Perry's post-operative pain relief was managed by an in situ epidural infusion. She alleges in these proceedings, and as presently advised I do not understand it to be in dispute, that the paralysis of her legs that quickly developed, and from which she now continues to suffer, was caused by that infusion. She alleges in these proceedings that the defendants were negligent, either because they did not choose some other analgesic technique when she had informed them of her prior reaction to an epidural in 1999 or alternatively did not detect the onset and progress of her condition, or treat it appropriately, so as to prevent it entirely or at least minimise its severity. 3Mrs Perry's case against Dr Stephens includes an allegation that he "failed to gain [her] consent to administer analgesia by epidural throughout surgery or at all". There is no doubt that the plaintiff underwent surgery and that an epidural infusion for intra-operative and post-operative purposes was administered to her. There is also no doubt that she knew that Dr Stephens proposed to use that technique because he told her so before the operation. In that sense it is uncontested that she gave her consent. However, Mrs Perry contends that she was neither told of the particular risks of an epidural for her personally, having regard to her previous adverse experience with an epidural in 1999, nor was she informed in general terms, regardless of her particular personal experience, of the risks involved or the available alternatives. 4In these proceedings there is a sharp and so far unresolved contest concerning the factual issue of whether or not Mrs Perry told either Dr Lennox or Dr Stephens about her 1999 experience. She contends that she did. Both doctors deny it. For presently relevant purposes it can be noted that Dr Stephens agrees that Mrs Perry's 1999 epidural history was an important piece of information that he should have been told and which, in neutral terms, would have made a significant contribution to the decision he made about what anaesthetic and analgesic regime should have been implemented in her case. 5Dr Stephens is currently being cross-examined by senior counsel for Mrs Perry and has been asked a question about an alternative form of patient administered post-operative pain relief. Senior counsel for Dr Stephens has objected to the question upon the basis that it raises an issue that forms no part of Mrs Perry's case as anticipated by him and is outside the pleaded case that Dr Stephens has come to meet. In particular, he perceives that Mrs Perry's case, as currently formulated, relies upon the factual contention that she told the doctors of her 1999 experience and that they failed to take account of it. If that factual issue is decided against Mrs Perry then, according to senior counsel for Dr Stephens, she is out of court with respect to any claim that she did not give her consent to the epidural procedure. 6In contrast to that position, Mrs Perry contends that it follows that if her evidence about what she told the doctors is not accepted, her case as currently pleaded is nevertheless wide enough to include or to encompass the contention that she should have been told about the pros and cons of epidural anaesthetic and analgesic infusions even so. In other words, accepting the doctors' cases at face value, and accepting for the sake of the argument that she did not alert them to her history, she was entitled to be given information about the risks involved, including a comparison with the risks of alternatives to an epidural. 7It seems to me upon a proper analysis of the doctors' cases that they do not dispute an obligation to discuss the form of anaesthetic and analgesia that they proposed to use. So much is readily apparent from the terms of the consent forms that Mrs Perry was asked to complete. All of the forms make reference in some context or another to anaesthetics or anaesthesia. There is a tacit recognition and acceptance arising from these forms at least that someone in Mrs Perry's position, with no particular epidural history, is entitled to information upon the basis of which to make an informed decision about all relevant aspects of the surgical procedure being contemplated. That necessarily includes anaesthetic and, in this case, post-operative pain relief. 8What appears to have emerged, from the very fact of the objection taken to the question concerned, is a dispute about the scope and content of the obligation upon the doctors to discuss the particular subject matter with a patient such as Mrs Perry. This may be as much a result of the form of the pleading as anything else. For example, at one level, Mrs Perry is alleging a failure to warn her of the risks involved. However, her case is not specifically pleaded in that way. That is perhaps on one view regrettable. Looked at from another perspective, the pleadings do not in terms particularise the matters that Mrs Perry seeks now to contend should have been explained to her. Instead, her pleading that advances a failure to gain her consent to an epidural is pregnant with unspecified and unidentified examples of just what Mrs Perry alleges the doctors should have done to gain her consent. It will be apparent that Mrs Perry now contends that alternative forms of post-operative pain relief are at least one example of something that the doctors should have discussed in order to gain that consent. 9There is therefore to some extent a disconnect between the pleaded case and the position Mrs Perry says is inherent in it. It would have been, and probably still is, preferable for Mrs Perry to have pleaded a case in particular and specific terms that Dr Lennox and Dr Stephens failed to gain her consent to an epidural or obversely that they failed to warn her of the relevant risks of the technique proposed. In my view, however, the line of questions upon which it appears senior counsel for Mrs Perry is about to embark is not outside the very case that Dr Lennox and Dr Stephens have each propounded in their own defence - that is to say, that even though Mrs Perry did not tell them about her poor reaction to an epidural in 1999, they each did what was required of them in order to inform Mrs Perry in such a way that enabled her to give a genuine and informed consent. I disagree with the proposition that this line of cross-examination is an unjustified or impermissible excursion into an area that the defendants could not have been expected to confront. On the contrary, I consider that it is one of the very issues arising from the way in which Dr Lennox and Dr Stephens oppose Mrs Perry's claim and that the question that has been asked is directed to it. 10Moreover, the question seems to me to be relevant and permissible when one has regard to the terms, and application to this case, of s 5O of the Civil Liability Act 2002 upon which the defendants rely.