Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fan v South Eastern Sydney Local Health District [2016] NSWCA 64 Hearing dates: 1 March 2016 Decision date: 06 April 2016 Before: McColl JA at [1]; Basten JA at [2]; Simpson JA at [94] Decision: (1) Dismiss the appeals. (2) Order that the appellant pay the respondent's costs in this Court. Catchwords: TORTS – medical negligence – whether misdiagnosis – whether unreasonable delay in carrying out cholecystectomy – whether delay resulted in further medical conditions and disabilities – claims not supported by experts APPEAL – civil – function of appellate court in relation to fact finding at trial – whether conflicting statements in written records provide basis for appellate interference with the findings of trial judge – selective reading of evidence – importance of joint expert report and evidence in conclave Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Supreme Court Act 1970 (NSW), s 75A Category: Principal judgment Parties: Wei Fan (Appellant) South Eastern Sydney Local Health District (Respondent) Representation: Counsel: Appellant self-represented Ms J Lonergan SC/Mr S Woods (Respondent) Solicitors: Appellant self-represented Curwoods Lawyers (Respondent) File Number(s): 2015/263062; 2015/353083 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1235; [2015] NSWSC 1620 Date of Decision: 31 August 2015; 3 November 2015 Before: Harrison AsJ File Number(s): 2008/289228 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Between January and March 2007, the appellant, Mr Wei Fan, attended St George Hospital, Prince of Wales Hospital and Sutherland Hospital (all within the South Eastern Sydney Local Health District). He initially presented with symptoms of abdominal pain, jaundice and vomiting and was diagnosed with cholelithiasis (presence of gallstones) and cholangitis (inflammation of the bile ducts). He underwent a successful endoscopic procedure. Three months later he underwent a cholecystectomy (removal of the gallbladder). In 2008 Mr Fan brought proceedings against the South Eastern Sydney Local Health District, as the authority responsible for the three hospitals, alleging that it had been negligent in his treatment. He alleged that it had breached the duty of care owed to him through its failure to diagnose and treat him for the condition of acute cholecystitis (inflammation of the gallbladder). He maintained that the delay in carrying out a cholecystectomy resulted in him suffering further medical conditions and disabilities. Following a trial in the Supreme Court, Harrison AsJ dismissed the claims, finding that the Local Health District, through its medical officers, had not been negligent in treating Mr Fan. In a separate judgment, her Honour made a gross costs order against the plaintiff. Mr Fan appealed against the judgments and orders. The appellant submitted that there was conflicting testimony within the written evidence presented to the court concerning relevant issues relating to the failure of the hospitals to appreciate the seriousness of his condition, which, he contended, would provide a basis for identifying error in the trial judge's finding. The questions raised were whether: (i) a failure to diagnose acute cholecystitis at his first presentation at St George and subsequently at Prince of Wales, which led to a delay in deciding to conduct a cholecystectomy; (ii) a subsequent delay to a scheduled operation occasioned by its cancellation despite the operation being then regarded as the appropriate treatment; (iii) the hospitals not appreciating the severity of Mr Fan's weight loss and malnutrition as a further indicator of the seriousness of his condition; (iv) a failure to diagnose Mr Fan with type 2 diabetes during this period, which led to his subsequent 'peripheral neuropathy' as a related secondary diagnosis; (v) these failures caused a neuropathy or myopathy (muscle weakness) and a serious fall on 9 March 2007, in which he fractured the base of his skull, and (vi) the judge erred in making the gross costs order. Held (per Basten JA, McColl and Simpson JJA agreeing) dismissing the appeal, and upholding the trial judge's costs orders: Generally: 1. There were problems in the approach adopted by the appellant in extracting particular statements from the written evidence at trial from which to draw inferences in support of his case, whilst disregarding the weight of oral testimony and evidence which failed to support a finding of negligence: [6]-[7]. In relation to (i): 2. Given the clinical evidence and Mr Fan's test results, the joint experts' report and the oral testimony supported a finding that Mr Fan's diagnosis and treatment was consistent with competent medical practice: [25], [31]. In relation to (ii): 3. The delay to the scheduled operation was not contrary to proper medical practice: [75], [79]-[81]. In relation to (iii): 4. The claim of significant weight loss was not supported by the evidence: [56]. In relation to (iv): 5. The appellant's blood sugar levels having been monitored during 2007, the random glucose readings did not indicate diabetes until May 2008, when the condition was diagnosed: [64]. In relation to (v): 6. No neuropathy was established in 2007, nor any causal connection established between his treatment and the disabilities he suffered, including the fractured skull: [68], [86]. In relation to (vi): 7. There was no error in making a gross costs order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW): [90]. Judgment 1. McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 2. BASTEN JA: On 20 January 2007, the appellant, Wei Fan, presented at the emergency department of St George Hospital suffering from an obstruction of the bile duct. Some three months later, on 15 March 2007, a cholecystectomy (an operation involving the removal of the gallbladder) was performed. 3. Since then he has suffered from a variety of medical conditions and disabilities which he attributes to a series of alleged missteps in his diagnosis and treatment between January and March 2007, including a failure to diagnose and treat him for the condition of acute cholecystitis (inflammation of the gallbladder) when he first presented at St George Hospital on 20 January 2007. Part of the treatment occurred at St George Hospital, part at Prince of Wales Hospital and part at Sutherland Hospital. All were the responsibility of the respondent, a statutory entity. Introduction 1. In 2008, the appellant brought proceedings against South Eastern Sydney Local Health District, as the authority responsible for the three hospitals. A trial took place in the Common Law Division over 10 days in March and May 2015. On 31 August 2015 Harrison AsJ delivered judgment dismissing the claims. [1] Against the contingency that her finding that no liability had been established might not be upheld on appeal, the trial judge assessed damages. Finally, in a separate judgment, she awarded costs against the plaintiff. [2] Despite the lengthy hearing, the detailed and comprehensive reasons of the trial judge allow the issues raised on appeal to be disposed of reasonably briefly. For the reasons which follow, the appeal must be dismissed. 2. Before explaining why that is so, two procedural matters should be noted. The first is that, pursuant to a grant of leave, argument on the appeal was presented by Mr David Fan, the legally trained (but not admitted) son of the appellant. The appellant not being fluent in English and being confined to a wheelchair and without the benefit of legal representation, the Court took the view that the presentation of the appeal would be greatly hindered if David Fan (assisted by his mother Ms Yue Wang) were not permitted to present argument. In fact, Mr David Fan proved an articulate advocate and was able to give a clear focus to the somewhat obscure and lengthy written submissions which had been filed in support of the appeal. 3. Nevertheless, it is to be noted that Mr David Fan (and his mother) both gave evidence before the trial judge, critical aspects of which were not accepted. Because the relevant evidence of Mr David Fan was limited to one occasion when he attended at the hospital with his father and purportedly noted the record made of his father's weight, and given the exigencies of the case, the Court allowed him leave to appear for his father. In ordinary circumstances, it would not be appropriate for an advocate to appear in a case in which he had been a witness and certainly not in one in which his credibility as to a material issue was at stake. 4. The second matter concerns the material which was relied upon on the appeal. Although it is true that the appeal, pursuant to s 75A of the Supreme Court Act 1970 (NSW) is an appeal by way of rehearing, the arguments which were presented relied almost entirely upon specific statements which appeared in the written records, but which were not accepted by the medical experts and had either not been drawn to the attention of the experts and put to them in cross-examination, or had been discounted by them. In some circumstances, it was not clear that reliance had been placed on this material in submissions to the trial judge. 5. By the time of the appeal, the appellant faced a double burden. First, at trial he faced the burden, not merely of producing some evidence to support his allegations of breach of duty, but a persuasive burden of establishing his case to the affirmative satisfaction of the trial judge, on the balance of probabilities. Further, on appeal he faced the burden of satisfying this Court that it should interfere with findings which, on any view, were reasonably open and as to which the trial judge had had the considerable benefit of extensive oral testimony. The mere existence of conflicting testimony provides no basis for identifying error in these circumstances. Issues on appeal 1. In order to focus on those findings of fact and the evidence material to them which can properly inform the outcome of the appeal, it is convenient to start by identifying the issues raised by the appellant. 2. In opening the appeal, Mr Fan identified three main issues. The first concerned the failure of the hospital to diagnose the appellant with acute cholecystitis when he first presented on 20 January 2007, and thereafter. The consequence of this misdiagnosis was said to be a failure to operate with the degree of urgency which that diagnosis would have required. 3. Secondly, there was an issue described as "malnutrition and weight loss", the significance of which also went to the failure of the hospitals to appreciate the seriousness of the appellant's condition. 4. Thirdly, Mr Fan identified "the issue of peripheral neuropathy" as a condition separate from the Type 2 Diabetes with which the appellant was diagnosed, but not until May 2008. When questioned by the Court, Mr Fan was inclined to accept that this matter related to the disabilities which he suffered. In March 2007, shortly prior to the operation, the appellant fell as he got out of a taxi just outside his home. He suffered a fracture to the base of his skull. This was said to be a consequence of the failure properly to diagnose his condition and of allowing him to leave the hospital. 5. As the first two issues are closely related, it is convenient to deal with the circumstances of both together. The third raises discrete matters. 6. Before addressing those issues it is convenient to note the primary medical conditions referred to in the evidence. The appellant was diagnosed with cholangitis, being inflammation of bile ducts ("chol" referring to bile and "angeion" a vessel). The appellant claimed he was suffering from acute cholecystitis, being inflammation of the cholecystis or gallbladder. Failure to diagnose acute cholecystitis (a) St George Hospital – 20-22 January 2007 1. The St George Hospital admission notes show that the appellant attended the hospital on the evening of 20 January 2007. The presenting problem was identified as "obstructive jaundice". He attended with Mr David Fan whose relationship was described as "nephew". On two places on the admission form, the appellant's age was recorded as "44". 2. Both the nurse and the resident medical officer took a history of four days of feeling unwell with abdominal pain and distension, jaundice and vomiting. Dark colour of urine was noted, lethargy, but "no weight loss". A diagnosis of "? Cholangitis" was recorded. The note continued, "[a]fter discussing with the patient and his nephew patient decided to stay and have treatment." There was also a note that the patient wished to discharge himself against medical advice but was dissuaded. He was administered antibiotics. 3. The notes for 22 January indicated that the appellant was still in St George Hospital and that the planned treatment included an ERCP (endoscopic retrograde cholangio-pancreaticography), a non-surgical procedure which allows the specialist to view the biliary system by inserting an endoscope. The procedure was "strongly" advised by Dr Chu and the notes at 10pm on 22 January recorded that the patient was happy and a consent form was completed with the son, but only, it appears, after a long discussion with the appellant's son and wife who "want to remove patient from hospital – reasons are unclear". The appellant later left, the note recording that he was discharged against medical advice. 4. The appellant also underwent an ultra-sound scan on 22 January which noted that there were "multiple mobile calculi within the gallbladder which otherwise appears normal and is non-tender." The summary in the report, extracted in the clinical notes for January 22 was "cholelithiasis with no ultrasound evidence of cholecystitis nor of biliary dilatation." ("Calculi" and, more precisely, "choleliths" are popularly referred to as gallstones; "cholelithiasis" is the condition of having such material in the gallbladder or bile ducts.) 5. Although the appellant was admitted to Prince of Wales Hospital at 6am on the following day (23 January), it is convenient to deal first with the allegation that there was negligence in failing to diagnose acute cholecystitis when he first presented at St George Hospital on 20 January 2007. 6. On admission, the appellant was seen by a resident medical officer, a surgical registrar and Dr Francis Chu, a consultant hepatobiliary surgeon. Dr Chu provided a statement and was not required for cross-examination. The statement included the following: "Mr Fan's presenting problem on 20 January 2007 was obstructive jaundice. During this admission Mr Fan had an ultrasound which showed multiple stones in the gallbladder with no evidence of cholecystitis. His common bile duct had multiple stones and his bilirubin level was 150. He was referred to have an … ERCP." 1. Assuming that Dr Chu was available (there was no suggestion he was not) it would have been difficult to maintain that his conduct was negligent in the absence of cross-examination. However, the appellant took a different course. Relying on a report by Professor Ross Smith, he sought to establish that "it is not easy to determine the severity of cholecystitis on clinical grounds and with ultrasound" and therefore it was "good surgical practice to undertake a cholecystectomy … if the patient is not settling after 72 hours." [3] In other words, the clinical examination and ultrasound should, presumably, have been disregarded. 2. There were problems in relying on this evidence. First, in his oral evidence, Professor Smith agreed that the appellant's symptoms were consistent with cholangitis. Secondly, he agreed that later reading had suggested that an ultrasound may only be 60% to 70% accurate in diagnosing acute cholecystitis. Thirdly, Professor Smith based his opinions on the assumption that by 15 March the appellant had lost 32 kilos in weight over some 7 or 8 weeks, a proposition which will be addressed below, but which the trial judge did not accept. Fourthly, the other expert witnesses, being Drs Vickers and Collier did not accept the criticism on this point. Fifthly, when the appellant was seen by Drs Riordan and Keogh at Prince of Wales Hospital a few days later, he was not diagnosed with acute cholecystitis. Sixthly, he was never diagnosed with acute cholecystitis by his treating practitioners. 3. Finally, it is necessary to turn to the joint expert report signed by Drs Smith, Vickers and Collier. Question 2(3), and the answers given were in the following terms: "(3) Was it, as at 2007, in accordance with competent professional practice for St George Hospital staff to decline to perform laparoscopic cholecystectomy during the Plaintiff's admission to St George Hospital without the Plaintiff first undergoing an Endoscopic Retrograde Cholangio-Pancreaticography (ERCP)? Dr Vickers: I will not comment as this is a surgical question. A/Prof Collier: Yes. Prof Smith: It is a decision for the surgeon on the day. It was not inappropriate." 1. The next question sought to identify the degree of urgency attending a recommended laparoscopic cholecystectomy on 27 February 2007. Although the question and answer appear not to have been admitted, on the basis that the diagnosis and recommendation on that date were undertaken by Dr Chu in his private rooms, when the appellant was not in hospital, the answers given did not support the appellant. (However, Dr Chu's account was admitted and his opinion was that accepted by all three experts in their joint evidence.) 2. In summary, the appellant faced three major difficulties in establishing negligence on the part of St George Hospital in the period 20-22 January 2007. First, he did not seek to challenge the evidence of the treating doctors; secondly, he discharged himself against medical advice and apparently within 72 hours; thirdly, the joint expert report (and the evidence of the experts in conclave) provided no basis for such a finding. It follows that the challenge to the conclusion of the primary judge that there was no negligence in failing to diagnose and treat operatively acute cholecystitis at that stage must fail. (b) Prince of Wales Hospital – 23-31 January 2007 1. As noted above, the appellant was admitted to Prince of Wales Hospital early on the morning of 23 January. While at Prince of Wales, the appellant was seen by Dr Riordan, Dr Keogh and his registrar, Dr Gandy. In short, the diagnosis and proposed treatment were the same as at St George Hospital. Dr Riordan gave evidence that he called St George Hospital to find out the results of the ultrasound, which he treated as significant. 2. Dr Riordan gave extensive evidence of his diagnosis and treatment in January 2007. He was cross-examined to suggest that, on the basis of the appellant's presentation on 23 January 2007, he would have recommended urgent surgery. He did not agree with that proposition [4] and consistently adhered to his conclusion that the symptoms with which the appellant presented suggested that the recorded diagnosis was right because a diagnosis of cholangitis took out of play the main differential diagnosis, namely acute cholecystitis. [5] He gave reasons for his conclusions. [6] 3. Dr Riordan, in agreement with Professor Smith, considered the ultrasound as not a definitive indication that there were no gallstones in the bile duct. [7] Dr Keogh agreed with Professor Smith that prompt surgical intervention was the treatment for acute cholecystitis. Dr Keogh stated: [8] "On the basis that acute cholecystitis is a condition that we used to manage with antibiotics from time [to time], [i]n the majority of circumstances now we manage acute cholecystitis surgically, as a surgical condition, usually within that admission and invariably within 48 hours of presentation and that would be our common practice. As opposed to the management of cholangitis which is about antibiotics and drainage of the bile duct by ERCP." 1. Although the doctors who treated the appellant at Prince of Wales were cross-examined, no concessions were obtained with respect to the appropriateness of the diagnosis and treatment. 2. The joint expert report posed the question whether it was in accordance with competent professional practice to recommend and proceed with an ERCP on 25 January and 30 January 2007. Both Dr Collier and Dr Vickers said that it was. Professor Smith agreed, but added that it "would have been better had a laparoscopic cholecystectomy been performed." [9] Both positions were clarified in evidence given in conclave. The trial judge noted Dr Collier's evidence that there was an unresolved debate "as to whether there should be an initial ERCP to remove stones from the bile duct or whether a cholecystectomy should be performed, removing stones from the bile duct at the same time as removing the gallbladder." [10] Both surgeons agreed that either procedure would be acceptable. 3. In the light of this evidence, the rejection by the trial judge of the proposition that there was negligence on the part of Prince of Wales in undertaking an ERCP and not carrying out a cholecystectomy, cannot be disturbed. Indeed, it would have been a contrary view which would have been remarkable. 4. Before leaving this issue, it is appropriate to note three aspects of the evidence relied upon by the appellant to challenge this conclusion. First, there was reliance placed on the initial reports of Professor Smith. There were undoubtedly passages in Professor Smith's reports which supported the case run by the appellant. However, there was much that did not, including the statement in his first report of 11 February 2009 that "[n]o negligence can be placed on this case but there did not appear to be sufficient recognition of the severity of his illness …". [11] 5. The second report (of 4 June 2009) expressed a firm opinion that, on 20 January 2007, the condition with which the appellant presented was "clearly acute cholecystitis". He then noted recommendations that favoured immediate surgery, but accepted that there was a different view as to appropriate treatment and concluded that there was no negligence involved. 6. It was only by taking passages out of context that it was possible to make any case supportive of negligence on the part of the hospital and treating medical staff. Further, that course required that Professor Smith's evidence in conclave be put to one side. However, to take that course is to misunderstand the nature of the evidence and the trial process. 7. There was a further issue with respect to Professor Smith's approach. He relied on evidence that the appellant had suffered a 40% weight loss in two and a half months. [12] That factor was treated as a strong indicator of the seriousness of the appellant's illness at that time. The trial judge did not accept that there was such a weight loss, which is a separate issue addressed below. Suffice it to say that the challenge to the judge's finding should be rejected, with the result that a key underpinning of Professor Smith's original opinions must be removed. 8. The second piece of evidence relied upon by the appellant to establish that he had, at all stages, suffered from undiagnosed acute cholecystitis was the fact that such a diagnosis was included by the operating surgeon in the notes upon his discharge from St George Hospital on 16 March 2007. Perhaps ironically, given the emphasis otherwise placed upon the administrative documents, the coding in the discharge document for 16 March 2007 recorded the principal diagnosis as chronic cholecystitis (not acute) and did not include acute cholecystitis even as an "additional" diagnosis. Further, it was to be noted that the other findings, resulting from the cholangiogram was "gas bubble in CHD – otherwise NAD [no abnormality detected]". 9. The experts were asked to comment on the conflicting diagnoses, one by the surgeon and one based on the histopathology. Dr Collier commented: [13] "Acute cholecystitis is a range of things from very mild to severe, so we don't really know what the surgical description really means, and I would be more – taking more notice of the final histological diagnosis that he – it seems from the histology that the lining of the gallbladder, the mucosa, was intact and there were no stones seen so that suggests the stones have been passing and it had all passed. But normally with … acute cholecystitis, you would find laceration of the lining of the gallbladder, or some evidence of acute infection and there was none of that. … So the chronic cholecystitis again can be a range of things from very minor chronic inflammatory changes to dramatic thickening and scarring and changes and we don't quite know from these two documents which of those we are dealing with. But my – putting this together I think this is more consistent with the presence of stones causing some chronic inflammatory changes in the gallbladder rather than acute cholecystitis." 1. Dr Vickers commented: [14] "If you read the pathology report the pathologist has examined the whole gallbladder in detail and not just the mucosal internal lining, and he says in the report here 'the serosa' which is the external visible surface to a surgeon, is 'unremarkable' therefore there are no features that the surgeon would see that would be compatible with acute cholecystitis." 1. Professor Smith was inclined to give greater weight to the opinion of the surgeon but thought that what the surgeon was saying was "this is an inflamed gallbladder." [15] That did not lead him to express a significantly different view from that of the other two experts, nor did it lead him to suggest that there was negligence on the part of the treating medical officers at the hospitals. 2. The third aspect of the evidence, relied on in the appeal to establish that there had been a diagnosis of acute cholecystitis, was a set of administrative records, each described by the appellant as a "discharge summary". In particular, he referred to a record, apparently prepared on or shortly after the appellant's discharge from Prince of Wales Hospital on 31 January 2007 which included as the "principal diagnosis", the reading "*K830 cholangitis"; and under "Additional diagnoses" a line reading "#K8001 Calculus of gallbladder with acute cholecystitis, with obstruction". The report followed the ERCP which had been undertaken at the hospital and which was recorded as the relevant therapeutic procedure. 3. The document did not assist the appellant. It was clearly an administrative record, but it used codes and letters which were unexplained in the evidence. There was provision for a clinician's signature and date, but the document was in fact unsigned and undated. However, the document did contain an indication of the meaning of * and #. The former was identified as indicating "diagnosis and procedure codes which have affected the DRG assignment"; the latter was said to mean "complication and co-morbidity codes that do not affect the DRG assignment in this episode". It is apparent that acute cholecystitis fell into the latter category and not the former. Accordingly, the clinical summary was not consistent with a diagnosis with acute cholecystitis, but rather excluded it. To the extent that the appellant's case was that he had in fact received such a diagnosis, the record relied on did not support the inference. Allegation of massive weight loss 1. As noted above, a significant part of the appellant's case was that the severity of his condition was not recognised on his first admission to St George Hospital, nor on his subsequent admission at Prince of Wales. Had it been, he would have been operated on, the submission continued, within 72 hours of admission, with the result that various adverse consequences would not have followed. The severity of his condition was said to be demonstrated by a dramatic reduction from his usual weight (of around 70-72kg) to 44kg by the time of his visit to a pre-admission clinic on 15 March 2007. 2. The claim of a very significant weight loss rested upon shaky foundations. The purpose of the claim was to establish a specific harm suffered as a result of the failure of the hospitals to carry out the necessary operative procedure on or shortly after his first presentation on 20 January 2007. In his statement, the appellant asserted that before 20 January 2007 his weight was approximately 70-75kg. The basis for that assertion (as explained in cross-examination [16] ) was that his weight had been measured in China at health check-ups prior to his departure for Australia in July 2000 and that it was always in that range and there had been "no changes" since he left China. [17] 3. The appellant alleged that he was weighed on 21 February 2007 when he attended the pre-admission clinic (prior to his surgery which was then booked for 28 February). He said that a female staff member took his blood and weighed him. He claimed in a statement that the scales recorded his weight as 44kg and that he saw the staff member note it on a form on which she was entering information. He also said that he saw that she had written 44kg. In his oral evidence, he denied that he had seen her record that weight on the form, but adhered to his evidence that the scales indicated a weight of 44kg. Mr David Fan, who was with his father on that occasion, said that the nurse had stated the weight as "44kg" and, to his observation, wrote that weight on the form. 4. There was conflicting evidence. First, there was no record on any hospital note prior to 13 March 2007 of the appellant's weight. Secondly, the clinical notes taken on 20 January 2007, at the first admission, record various factors which must have been provided by the appellant, including "lethargic" and "no weight loss". 5. Thirdly and separately, there was the evidence of the nurse who took the blood sample on 21 February, Ms Janet Beetles. She, understandably, did not have any recollection of seeing the appellant when she prepared her affidavit in 2015. However, she agreed that the pathology form dated 21 February indicated that she had taken a blood sample. She also stated: "Mr Fan was not attending an anaesthetic clinic on 21 February 2007 and accordingly, there would have been no requirement to weigh him at this time." 1. She agreed in cross-examination that he would have been weighed, had a medical officer so directed, and conceded the possibility of that occurring. 2. Fourthly and highly significantly, when the appellant was weighed and his weight recorded, on 13, 14 and 16 March 2007 it was, on each occasion, approximately 61kg. On 15 March, the laparoscopic cholecystectomy (and intraoperative cholangiogram) had been undertaken. 3. Fifthly, the suggested weight loss of 28kg (from 72kg – 44kg) was the subject of comment by Dr Vickers at the conclave of experts (and indeed in his report). In his oral evidence Dr Vickers stated: [18] "I think it's almost impossible in medicine to lose 28 kilograms of weight in the space of two or three weeks that we're talking about here, without some obvious features of serious illness and for a person to walk into hospital and walk out of hospital and come back two or three times I think that is almost impossible. Someone would have to be on their deathbed, and they have to stay in hospital, to lose 28 kilograms of weight in a short space of time." 1. Although it was possible that Dr Vickers was undertaking the wrong calculation, because by 20 January 2007 the appellant was in fact less than 72kg, nevertheless, that was not put to him as part of the appellant's case. In any event, once the appellant staked his position on a weight of 44kg on 21 February, he then had to explain how the weight had increased (during a period of presumed continuing illness) to 61kg by 14 March 2007. 2. The appellant suggested that the increase in weight was due to a syndrome characterised by excessive release of anti-diuretic hormone, resulting in fluid retention (SIADH). The history giving rise to this possible diagnosis followed an admission to Sutherland Hospital on 8 March 2007, at which stage it was decided that the operative procedure (cholecystectomy) which had been planned for 30 March 2007 should be brought forward to 12 March. However, in the course of the day, the appellant discharged himself from hospital and caught a taxi home. When getting out of the taxi, he fell and hit his head, causing a fracture at the base of the skull. He was readmitted to St George Hospital on the evening of 9 March. The procedure scheduled for 12 March was postponed, "due to SIADH secondary BOS fracture." [19] 3. The possibility that fluid retention following the fall had caused the increase in body weight by 13 March was an hypothesis which was contrary to the expert evidence. When it was put to the experts that this might account for the increase in weight, Dr Vickers explained that an anti-diuretic hormone was a function which allowed the body to retain water in cases of dehydration, but could be an abnormal response brought on by drugs or head injuries. Dr Vickers also noted that one litre of water is equal to one kilogram and concluded that the weight increase would have been "minimal, perhaps 3 or 4 kilograms". [20] 4. Dr Collier in considering the possibility that there would have been a weight increase due to retained fluid stated that "most people with this inappropriate ADH [anti-diuretic hormone], 5% weight gain or 5% of the their body water increase would be about the maximum, 10% is probably not compatible with life, so the maximum weight he could gain from inappropriate ADH would be somewhere between 3 and 6 kilograms. … But anything more than a couple of kilograms would seem to be unlikely." [21] 5. Accordingly, as the trial judge accepted, the possible increase due to retention of fluid could not explain a weight increase from 44kg to 61kg. 6. Before leaving the topic, it is appropriate to refer to one other piece of evidence relied upon by the appellant. That was a note prepared by a clinical dietician on 3 May 2007, whilst the appellant was in Sutherland Hospital some seven weeks after the operation. The appellant had been referred to the dietician for "poor oral intake", having been admitted on 28 April with a history of increased incidents of falls "since Feb" and an account of weakness and dizziness. There was also a complaint of weight loss. However, the sole significance of the evidence for present purposes is that the appellant appears to have recounted to the dietician that his usual weight was about 70kg, that it had decreased severely to 44kg (the record said on 24 February 2007, not 21 February) while he had been waiting for a cholecystectomy. The dietician estimated his weight at about 58kg but noted that there was no physical sign of severe weight loss. 7. This independent record is consistent with the appellant having a certain understanding of what had happened in February, within weeks of the event. It should be accepted that his evidence at trial did not constitute a recent invention, but, given the overall unlikelihood that he did in fact suffer such an extreme weight loss, his account probably resulted from a contemporaneous misunderstanding. It remains the fact that the probabilities overwhelmingly support the conclusion that the extreme weight loss claimed did not occur, with the result that Professor Smith's opinion that there had been an underestimation of the severity of the appellant's condition was not made good, nor was the consequential inference of misdiagnosis. Type 2 diabetes 1. There was some doubt as to whether the appellant maintained a challenge to the rejection by the trial judge of a claim with respect to type 2 diabetes. His oral submissions focussed on a different point, namely that he suffered an undiagnosed peripheral neuropathy, which caused a fall in March 2007, the neuropathy being quite independent of any possible diabetes. The preferable course is to address both issues. 2. The further amended statement of claim alleged a failure by St George Hospital, on the first admission on 20 January 2007, to follow up tests which indicated that the appellant was likely to have undiagnosed diabetes. These included a glucometer reading of 10.8mmol/L and a glucose in urine reading of 250mg/dL. The appellant was in fact diagnosed with type 2 diabetes, but some 16 months later, in May 2008. The failure to diagnose and treat the appellant for diabetes over that period was said to have led to a number of complications, including peripheral nerve damage, myopathy, muscle wasting and cataracts. 3. The experts who gave evidence with respect to this issue were Professor Smith, Dr Vickers and Dr John Carter. Dr Carter was an endocrinologist, who was not cross-examined on his opinion. Given his speciality, Dr Carter was best qualified to give evidence on this topic. However, of the three experts who provided the joint report, Professor Smith and Dr Vickers expressed opinions which were broadly consistent with those of Dr Carter. 4. Dr Carter's report of 17 April 2013 expressed the view that neither glucose level warranted a diagnosis of diabetes. Such a diagnosis was justified "if the random glucose level is >11.0mmol/L in the presence of symptoms of high glucose levels such as increased thirst or increased urination." [22] 5. Although the experts agreed that it would have been appropriate to monitor the appellant's blood sugar levels, that in fact happened. Readings were recorded at Sutherland Hospital on 9 March 2007 (7.9mmol/L) and on 12 March 2007 (5.1mmol/L). These readings were described by Dr Carter as "normal". 6. The trial judge noted that between 1 May and 15 May 2007 the blood sugar levels were monitored multiple times and ranged from 4.8mmol/L to 9.3mmol/L. [23] They did not exceed 11mmol/L until mid-May 2008, when diabetes was diagnosed. 7. Dr Carter appears not to have had access to the readings referred to by the trial judge, between March 2007 and May 2008. However, he noted the suggestion in the medical records that the appellant was diagnosed with peripheral neuropathy in May 2008, secondary to diabetes mellitus. He expressed the view that, assuming diabetes had developed during the 14 months prior to May 2008, it was "extremely uncommon for a severe peripheral neuropathy to develop over such a short period of time." If in fact the period was several months shorter, the inference was of an even lower likelihood. 8. On the basis of this material, including the evidence of Dr Carter presented in the plaintiff's case at trial, it is unsurprising that the trial judge rejected the claim that there was a breach of duty of care in failing to diagnose and manage type 2 diabetes in 2007. [24] 9. Although it appeared from the appellant's written submissions that there was a challenge to this conclusion on the appeal, the thrust of the challenge was far from clear. Thus, the only express reference to the findings involved a reference to the judgment at [242], followed by extracts from reports by Professor Steinbeck of 14 May 2007 and Dr Carter of 17 April 2013. [25] The passage in the judgment read as follows: "In his report, Dr Carter agreed with the view that the peripheral neuropathy diagnosed on 15 May 2008 was secondary to type 2 diabetes. However his conclusion was that 'the development of peripheral neuropathy in 2008 is unlikely to have been avoided'." 1. The appellant's submissions set out the full passage from Dr Carter's report which illustrated two propositions. The second statement made by the judge was correct, Dr Carter being of the view that it was unlikely that the development of peripheral neuropathy would have been avoided if the appellant had been managed in accordance with "standard medical practice". On the other hand, Dr Carter did not agree that the peripheral neuropathy was secondary to diabetes, given the time period over which it appeared to have developed. In any event, if the first sentence of the passage set out above was in error, it was an error which did not assist the appellant. 2. In oral submissions the appellant sought to make a somewhat different point, namely that there was indeed no evidence of diabetes in 2007, but there was, independently, peripheral neuropathy. That neuropathy was said to be a disability arising from the failure to provide timely treatment for the appellant's cholecystitis and weight loss. 3. That submission must be dismissed for two reasons, further addressed below. First, there was no evidence of peripheral neuropathy in 2007; there were a range of possible reasons for the most serious of the falls. Secondly, once the failure to diagnose cholecystitis and the excessive weight loss are rejected, there was no basis for treating the fall from the taxi and the resultant disabilities as a consequence of any misdiagnosis by the respondent's agents. Thus Professor Smith's opinion that the serious fall was caused by myopathy (weakness of the muscles) was based on his initial understanding of excessive weight loss. Delay in operating and alleged consequences 1. There were two other related issues which were said to involve negligence on the part of the respondent. The first concerned the cancellation of the cholecystectomy which had been scheduled for 28 February 2007; the second concerned the cause of the fall suffered by the appellant on 9 March 2007, when he fractured the base of his skull. 2. The background to the fixing and cancellation of the proposed cholecystectomy was as follows. The appellant underwent the procedure referred to as ERCP on 31 January 2007. He was then discharged from Prince of Wales. Dr Keogh, who had seen him on 25 January 2007, approved of the intervention by ERCP as a mechanism for draining the bile duct and removing any gallstone present. He also recommended that the gallbladder be removed surgically to prevent further episodes of cholangitis. He proposed that that procedure be undertaken as a laparoscopic cholecystectomy, as an outpatient. 3. Dr Keogh saw the appellant at his outpatient clinic on 15 February 2007. He proposed that the procedure be undertaken within 30 days, with the consequence that the appellant was booked for surgery on 28 February 2007. 4. Because of the appellant's immigration status he was not entitled to Medicare for elective surgery (being everything other than emergency surgery). Because there were outstanding fees payable to the hospital, on 22 February, with the approval of Dr Keogh, the surgery was delayed and the appointment for 28 February was cancelled. 5. On 27 February the appellant saw Dr Chu in his private rooms in Miranda. Although the plaintiff initially gave evidence that he was suffering from abdominal pain, jaundice and was vomiting when he went to see Dr Chu, he agreed in cross-examination that he was in fact no longer jaundiced. He nevertheless believed that his abdomen was tender at that time. 6. In a statement tendered in evidence, Dr Chu said that when he saw the appellant on 27 February he was "no longer jaundiced and his abdomen was soft and non tender." He noted that the appellant had expressed concern about his lack of Medicare coverage and the fact that there was a two month waiting period under his private health insurance. Dr Chu said that "[a]s his abdomen was soft and non tender he did not warrant an emergency operation." The trial judge accepted Dr Chu's evidence in this regard [26] and, on that basis, the experts, including Professor Smith, were not critical of the plan to operate within 30 days. Surgery was scheduled for 30 March 2007. 7. The cancellation of the appellant's operation scheduled for 28 February 2007 was alleged to be a breach of duty on the part of the respondent. However, absent medical evidence that there was a breach of duty in failing to carry out the procedure by that date, the claim would fail. There was no such medical evidence and, as a result, the claim was rejected. 8. In fact the procedure was carried out on March 15, 2007, by Dr Chu, at Sutherland Hospital. That was a period of one month from the date on which the operation had been booked by Dr Keogh (on 15 February 2007). It was therefore not outside the 30 day priority period adopted by Dr Keogh. Measured by reference to Dr Chu's assessment, it was undertaken within 20 days of the appellant's consultation with him on 27 February. 9. In the course of the joint expert evidence at trial, there was discussion of the opinion of Dr Keogh, when he saw the appellant at an outpatient clinic at Prince of Wales on 15 February 2007 that, in terms of clinical priority, the operation should be undertaken within 30 days. That was an opinion with which Professor Smith agreed. [27] In giving that evidence, Professor Smith acknowledged that he had not read the whole transcript of Dr Keogh's evidence before the Court. He was given that opportunity over the lunch adjournment and, on his return, agreed that having read the transcript of Dr Keogh's evidence, Dr Keogh's conduct was "well within the range" of what "normal surgeons would do". [28] 10. Mr David Fan then referred to the evidence given by the appellant in cross-examination that he had told Dr Keogh on that occasion that he "had severe pain" and talked about the operation. [29] Each of the doctors was asked to comment on the assumption that the evidence that the appellant gave was true. It was suggested that, if he were suffering severe pain on that day, there was a case for urgent surgery. 11. Professor Smith was not persuaded to change his view, beyond considering that if the appellant "was having pain then that was an important piece of information." [30] When pressed as to whether there was "an urgency for the surgery" Professor Smith responded, "[w]ell urgency would mean operation on that day, but as I said before, to book in for an operation within 30 days, I think, is quite reasonable." 12. Dr Vickers said that "before you make a decision on someone's abdominal pain you have to be fairly certain exactly what is the cause of the pain." He noted that a few days earlier he had been prescribed Nexium and to exclude other causes he may have required an endoscopy. Professor Collier agreed with Dr Vickers. [31] 13. Finally, all three experts agreed that it was appropriate for Dr Chu to organise surgery within about 30 days of his examination of the appellant on 27 February 2007. [32] 14. This history was relevant to the appellant's case because, during what might be described as the period of delay between 28 February (when the operation was first scheduled to take place) and 15 March (when it did take place), the appellant was admitted to Sutherland Hospital (on 8 March) complaining of abdominal pain, jaundice, vomiting and persistent reduced appetite, but discharged himself against medical advice. On his way home by taxi, he fell when getting out of the taxi and suffered the fracture to the base of his skull. It was an important element of his case that this fall was causally related to the delayed operation. Otherwise the complaint of delay was without substance. 15. The trial judge disposed of this claim on the basis that the various decisions as to his treatment were in accordance with competent medical practice and, accordingly, there was no breach of duty. [33] That finding was not open to challenge, given the evidence set out above. It is convenient, nevertheless, to address the question of causation, which formed a significant part of the case on appeal. The appellant submitted that the fall resulted from a neuropathy or myopathy unrelated to diabetes. Alternatively, it resulted from weakness due to the acute cholecystitis or cholangitis. 16. The high point of the appellant's case was to be found in the joint experts' report, where, in response to a question as to whether any of the appellant's falls were caused by a failure to treat his illness or illnesses, Professor Smith had stated: [34] "Weakness might be due to weight loss which results in myopathy contributing to the fall. This weight loss would not have occurred had the laparoscopic cholecystectomy been performed in the first place. That is relevant to the first fall on 9 March 2007." 1. However, the cause of the intermittent falls suffered by the appellant was largely unresolved by the experts. Professor Smith was inclined in his earlier reports to blame the heavy weight loss, but on the basis that the weight loss might not be as gross as he had originally thought, he was less sure of that cause. [35] Dr Vickers gave the most precise evidence. He was troubled by the fact that the problem appeared to be "intermittent" [36] and considered that nutritional muscle weakness would not account for that. [37] He also considered that a form of neuropathy or myopathy (each being a disease) was also inconsistent with that history. [38] He favoured the notion of "postural hypotension, that when you stand up the blood pressure drops". [39] 2. There was, ultimately, no clear support for the view that the serious fall on 9 March was caused either by some side effect (including weight loss) from the cholangitis, not then completely treated, nor as a result of a neuropathy, whether as a condition as undiagnosed diabetes, or otherwise. There was, in short, not only a failure to establish any relevant breach of duty, but a failure to establish a causal connection between the alleged breaches of duty and the most severe consequence relied upon by the appellant. Costs appeal 1. By a separate judgment, delivered on 3 November 2015, the trial judge ordered that the plaintiff pay the defendant's costs of the trial, which she assessed as a gross sum of $250,000. The appellant filed (probably unnecessarily) a separate notice of appeal with respect to that judgment. Further, despite filing a notice of appeal, the appellant also sought leave to appeal, although it is not the practice of the Court to require leave to appeal against a costs order which is contingent upon orders made at the trial which are otherwise under appeal. 2. Given that the appellant failed to establish liability on the part of the respondent at the trial, it was appropriate for the trial judge to order that he pay the costs of the trial. The grounds appeared to assert that some other order was appropriate because the appellant had a reasonable basis for pursuing his claims. However, costs ordered against the unsuccessful party (at least when they are to be assessed on the ordinary basis) are not based on unreasonable conduct, but simply on the fact of lack of success. The appeal against the findings on liability having failed, that order should similarly stand. 3. There were two other aspects to the costs orders made at trial. First, the respondent sought to rely upon three offers of compromise made at various stages during the preparation for trial, each of which was relied upon in support of an order that costs be, thereafter, assessed on the indemnity basis. The trial judge rejected that application in respect of each offer. Because those conclusions were favourable to the appellant, it is not necessary to address the reasons for them; suffice it to say that the reasoning was generous to the appellant's position. 4. Thirdly, the respondent sought a gross sum costs order in lieu of an assessment, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The amount awarded, namely $250,000, was approximately 50% of the costs incurred by the respondent. The trial judge considered that proportion to be appropriate (being marginally below that claimed by the respondent) on the basis that there was a margin for some reduction in the amount on assessment and for the usual reduction on a party and party basis. 5. These conclusions were entirely within the reasonable exercise of the Court's discretion: the challenge to the costs orders made below must fail. Conclusions 1. The appellant having failed on each of his challenges to the principal findings of the trial judge on liability, it is not necessary to address the challenges to the contingent assessment of damages. 2. The appeals must be dismissed; the appellant must pay the respondent's costs in this Court. 3. SIMPSON JA: I agree with Basten JA. ********** Endnotes 1. Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235. 2. We Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620, judgment delivered on 3 November 2015. 3. Report, 4 June 2009, p 3. 4. Tcpt, 19/03/15, p 143(20). 5. Tcpt, p 149(40). 6. See also Tcpt, p 150(5)-(30). 7. Tcpt, p 135(30). 8. Tcpt, p 166(30). 9. Joint expert report, Q 3(1). 10. Judgment at [92]. 11. Report, 11 February 2009, p 3.9. 12. Report, 20 August 2009, p 1.5. 13. Tcpt, p 201(45). 14. Tcpt, p 202(30). 15. Tcpt, p 202(25). 16. Tcpt, p 69(20)-(30). 17. Tcpt, p 69(30)-(36). 18. Tcpt, p 182(25). 19. Discharge summary, 16 March 2007. 20. Tcpt, p 187(5). 21. Tcpt, p 186(45). 22. Report, p 2. 23. Judgment at [250]. 24. Judgment at [253]. 25. Appellant's written submissions, p 33. 26. Judgment at [157]. 27. Tcpt, p 211(15). 28. Tcpt, p 217(5). 29. Tcpt, p 77(22). 30. Tcpt, p 212(13). 31. Tcpt, pp 212(24)-213(1). 32. Tcpt, p 213. 33. Judgment at [253], [257] and [259]. 34. Joint Experts Report, p 7, Q 4(1). 35. Tcpt, pp 218-219. 36. Tcpt, p 217(30). 37. Tcpt, p 219(44). 38. Tcpt, p 218(10). 39. Tcpt, p 218(22)-(25). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2016