Download 1 - The Age

This is the full judgement delivered yesterday by Judge Susan Cohen in the County Court:
1. Ten years before the hearing of this case commenced, Mrs Daniela Paterno
was referred to Mr Stephen Hookey, an oral and maxillofacial surgeon, for
advice on possible oral surgery to correct her malocclusion. She accepted
the five step treatment plan recommended by him, of combined surgery and
orthodontics. The second operation undertaken by Mr Hookey as part of that
plan, sagittal split osteotomy to advance her lower jaw, was unsuccessful.
Since it was performed in July 1998, Mrs Paterno's life has been dominated
by facial pain and oral disabilities, attempted remedial treatments, and the
effects of medication. She sues Mr Hookey in negligence, claiming general
damages, and past and future expenses.
2. The plaintiff's case in negligence is put on two bases:
(i) That the defendant advised an inappropriate treatment plan for her,
particularly in that it included surgery; and
(ii) That the defendant failed to adequately warn her of what were allegedly
"high risks" of complications in her circumstances from the surgery he
recommended, specifically the risks of non-union of bone and of nerve
damage; and that if adequately warned she would not have agreed to the
treatment.
A further pleaded allegation, that the surgery was not performed with
reasonable skill and care, was not pursued.
3. The defendant’s case is that the treatment plan he recommended was
appropriate for the plaintiff, and that the non-union of bone and severe longterm pain which resulted were each very rare consequences which did not
require specific warnings. He maintains that he adequately advised her of the
risks of complications, but that if he did not, those of which he did not advise
were not "high risks", and if fully informed of them she would still have agreed
to proceed with the surgery.
4. Also in issue is the appropriate quantification of damages. The defendant
does not dispute that as a result of the surgery he performed on Mrs Paterno
on 16 July 1998, she has in fact suffered serious consequences requiring
much remedial treatment, leaving her with permanent symptoms, and
seriously affecting her life. The central area of dispute as to damages is
whether her current treatment with high levels of medication, particularly
opiate-based, and their many debilitating consequences, is likely to continue
for the rest of her life, or whether pain management programs might succeed
in enabling withdrawal from opiate use, better ability to manage her pain and
disabilities, and some improvement in her lifestyle. The defendant also
disputes a claim for unpaid care by Mr Paterno, and argues that there should
be amounts offset for what might have been other dental costs had the
defendant’s treatment plan not been undertaken.
Background to surgery
5. Mrs Paterno was born in Italy, came to Australia as a young child and,
although she says she left school quite young because she lacked interest in
it, she presents as a woman of commonsense, reasonable intelligence, and
with English as her first language. She married at age 21, and had three
children who are all now adults. She had worked before her marriage in a
solicitor's office, and in the early 1980s she was actively engaged in the new
business being established by her husband and his business partner, of a
reception centre, catering to large Italian weddings and similar functions.
6. In early 1997, at age 47, Mrs Paterno was living an active social and
domestic life. Her husband was running successful businesses. Her eldest
child, her daughter Susan, had left home but was still close to the family, and
her two sons still lived at home, the youngest in his late teens and studying.
Both of them worked part-time in the reception centre business. Although no
longer directly engaged in the business herself, she still had some
involvement in organising some of the functions there. Her husband was
president of the Vizzini Social Club, and she was active on the women’s
committee and in organizing and attending its functions. She put energy into
visual appearances, took care in her own clothes, and in presentation of
occasions when she entertained in her home and at functions she organized.
7. In late 1996 and early 1997, she experienced some facial pain in her sinus
area. She thought it related to a cold she had had and consulted her general
practitioner. Antibiotics improved but failed to resolve it. As the pain seemed
to extend into her teeth she then thought it might be dental-related. She was
also experiencing angular cheilitis, which manifested with red sores forming
at the corners of her mouth as a result of excessive moisture being trapped in
the crease or overlap of skin. This had been a recurring condition over a
couple of years. Visually, the redness could be camouflaged with makeup.
She also had some problems chewing and biting. She was already missing
all lower molars on the left side, and all but one on the right. When her
husband attended a dental appointment in early 1997, with Dr Guido
Romano, who was the family dentist and also a family friend, she took the
opportunity of accompanying him and consulting Dr Romano about these
problems.
8. Dr Romano obtained X-rays and concluded that her overbite had worsened.
He referred her to an orthodontist, Dr Robert Schwartz who was Dr
Romano’s "orthodontist of choice" for his patients, to whom in fact the
Paternos' son had previously been referred. Dr Schwartz obtained further
diagnostic studies, then reported to Dr Romano that, in his view, the plaintiff's
condition would best be treated by a combined orthodontic and surgical
approach. This he said was because the "simplest" plan of moving the upper
front teeth back with bands had two disadvantages. It would require
extraction of further teeth - and Mrs Paterno was already missing many back
teeth - and moving the front teeth back could well leave an unsatisfactory
facial aesthetic effect – retruded upper lip and increased naso-labial angle.
9. Dr Schwartz referred Mrs Paterno to Mr Stephen Hookey for advice on his
proposed combined treatment plan. Mr Hookey was regularly used by both
Dr Schwartz and Dr Romano if their patients required oral surgery. Mr
Hookey had taught Dr Romano during his dental course, and Dr Romano
was in the habit of attending his patients’ first consultation with Mr Hookey,
and did so with the plaintiff not merely because she was a family friend.
10. There is considerable dispute about what was and was not explained by Mr
Hookey in his first consultation with the plaintiff on 4 April 1997. At the end of
that consultation, Mr Hookey said he would send quotations for his parts of
the treatment, and she should "think about it", and discuss any queries with
Drs Romano and Schwartz, or with him again if she wanted. He forwarded a
quotation to her for the cost of the treatment plan he proposed. The treatment
plan as he wrote to Dr Schwartz, copied to Dr Romano, and advised the
plaintiff, was to include five stages as follows:
(1) Surgically assisted maxillary expansion (surgery to split the upper jaw
bone in the centre and insert an expandable plate into the palate).
(2) Fixed orthodontic therapy to level and align both arches (orthodontic
expansion of upper jaw and teeth alignment, over a period of 9 months or
more).
(3) Mandibular advancement surgery to create a Class I skeletal and dental
situation (surgery splitting lower jaw on left and right and advancing jaw
forward, fixed with plates and screws).
(4) Post-surgical orthodontics and retention phase therapy.
(5) Full prosthetic work-up with implant placement. He suggested a
conventional bridgework in the lower right quadrant and three fixtures in the
left mandible for a fixed bridge.
This was described as the "ideal sequence of events" and the defendant
wrote that he believed this treatment "would give her an ideal result in terms
of establishing a favourable morphology and the jaw joint symptoms should
show some resolution".
Was the treatment plan appropriate?
11. The plaintiff alleges that the treatment plan was inappropriate for her, in that
with her presenting symptoms, at her age, and being a smoker, the surgical
component of the treatment was inappropriate. Her statement of claim
proffered as an alternative appropriate form of treatment, the use of implants
and a crown/bridge combination without surgical intervention, but that
alternative gained no support in the evidence. Even without that alternative,
the plaintiff’s case is that there was negligence by the defendant in failing to
consider, and to advise her, that dental treatment without surgical
intervention was an appropriate form of treatment and management for her
malocclusion.
12. The plaintiff's presenting problems at the time of seeking advice on treatment
were recurring angular cheilitis, intermittent pain in her sinus area - possibly
temporomandibular joint pain - and difficulty chewing and biting. She
described the pain level at barely one on a scale of one to ten. She agreed
during cross-examination that she was also experiencing impact of her front
lower teeth on the gum immediately behind the upper front teeth, and was
also experiencing some dribbling from the corners of her mouth at night.
13. Both parties agree that dissatisfaction with the aesthetic look or shape of her
mouth or face was not part of the plaintiff’s presenting problems, and that the
treatment plan was not aimed at cosmetic improvement. She was not warned
of the risk of a worse aesthetic outcome.
14. She was aged 47 and a smoker. She had had previous successful surgery
with no ill-effect from general anaesthetics. The proposed treatment plan, had
it gone successfully, required two operations under general anaesthetic, the
first involving breaking the upper jaw, and the second breaking the lower jaw
in two places, and after each inevitable swelling and pain, difficulty eating for
a while, and very likely numbness in the lower lip and teeth for a period after
the second operation. It involved protracted orthodontic work with braces and
bands. It involved the placing of implants and crowning of them. It was to last
some 18 to 24 months if all had gone well.
15. The issue is whether such a plan was appropriate for a woman of the
plaintiff’s age, who was a smoker, and with her presenting symptoms. There
is no doubt that she had a malocclusion – an anatomical misalignment of her
jaws which caused a marked overbite.
16. Mr Hookey stands by his treatment plan for Mrs Paterno as being the optimal
treatment for her malocclusion.
17. When asked during his evidence about any other salient features of Mrs
Paterno’s presentation, in addition to facial pain and angular cheilitis, Mr
Hookey said: "The desire of the referring practitioners to restore her dentition
and their desire to create a more normal morphology of her jaws". The
plaintiff's counsel point to there being no mention of a desire by the plaintiff
for morphological normalisation. They argue that there was a significant gap
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between the plaintiff's presenting symptoms, and justification for the
treatment plan including surgery proposed. This disparity between the
technical correction of the malocclusion, and the presenting complaints is
also reflected in the letter Mr Hookey wrote recommending the treatment plan
which "would give her an ideal result in terms of establishing a favourable
morphology and the jaw joint symptoms should show some resolution".
In his evidence in chief Mr Hookey said that the relevance of her being a
smoker was related to the risks of anaesthetic. He also said that it was
relevant as it was his policy not to perform implants on smokers. He agreed
in cross-examination that her smoking should have been regarded as
relevant to the risk of non-union of bone, but not to an extent that made the
surgery unsuitable for her.
Supporting the appropriateness of the treatment plan is the evidence of Dr
Schwartz, whose referral letter indicated his support for a combined
orthognathic/orthodontic treatment approach as the "ideal" one. I note,
however, that in his referral letter he stated "Orthodontic treatment options
are dependent on the degree of skeletal and dental correction that is to be
achieved". I take that to indicate that there were other options, but it does not
reflect whether the availability of other options short of the plans that were
proposed as the "ideal treatment plan", but other than one he called "the
simplest" plan, were canvassed with the plaintiff. Nevertheless, Dr Schwartz’s
evidence still supported the appropriateness of a combined surgical and
orthodontic approach, as he had recommended, and for which he provided
the orthodontic treatment throughout.
Dr Bruce Taylor, an experienced orthodontist, was retained by the
defendant’s solicitors to provide an opinion on the appropriateness of the
treatment plan, and examined the plaintiff late last year. He said he had "no
doubt" that the treatment plan was appropriate and "whilst I acknowledge the
view other treatment options may have been explored, the treatment plan
presented whilst being complex is in fact in keeping with contemporary dental
practice". He did not see the plaintiff's age as a contra-indication for this
approach and said in his experience of over 20 years in orthodontics, many
patients had been treated successfully without complication of greater age
than this patient. In cross-examination he agreed that in any area of medicine
the recovery rates in older people may not be as great as in younger people,
and that smoking and higher age increased the level of risk in orthognathic
surgery.
Dr Taylor said discussion of options by a dentist may well have included talk
about partial dentures and palliative care for the angular cheilitis. He said
"The objective of partial dentures would be to add to the biting ability and to
open the jaw or widen the opening, which in turn would help the angular
cheilitis and may have improved the pain. It would have done nothing or little
in terms of the aesthetics or the appearance, and in contemporary dental
practice one would suggest it was really camouflaging the problem, rather
than treating the root of the problem, which essentially was the foreshortened
lower jaw". He said treatment with a partial denture is diminishing these days,
and bringing the jaw forward would improve the efficacy of a partial denture,
even if implants were not to be done to replace the missing teeth.
He agreed that a displacement appliance could be used as a diagnostic tool
to see whether shifting the lower jaw would improve pain levels, "but is not a
definitive treatment, nor will it address the problems associated with
aesthetics". He agreed that if it did not improve the pain, that would reduce
the reason for performing the surgery other than for aesthetics. He said it was
most unusual these days to use such a splint and was not something that
was routinely done, and by "these days" he included 1997. He was under the
impression that facial aesthetics were a motivating factor in the plaintiff
seeking treatment.
Dr Taylor acknowledged that there were other possibilities that could be tried,
but said "It is not, if you like, the ideal in terms of a technical point of view in
producing the best possible bite". The benefit from what he called the
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definitive way to correct her presenting problem, if it had gone as expected,
would be that she would have had a far better occlusion, a better ability to
eat, better aesthetics, whether she wished for them or not, it would be highly
likely to have cleared up her angular cheilitis "and there would be a good
chance that it would address the problem of her pain".
The defendant also relied on the expert opinion of oral and maxillofacial
surgeon, Associate Professor Robert Jones of the University of Adelaide,
whose reports were tendered without his being required to attend for crossexamination. He did not examine the plaintiff for his original opinion on the
appropriateness of the treatment plan, but did examine her in Melbourne
early this year for a further opinion.
Associate Professor Jones’ opinion was that the treatment plan was
appropriate for the plaintiff with her presenting problems, which he originally
understood to include concern about her facial appearance. He states that
the mechanical treatment of skeletal Class II occlusions in this way helps
support temporomandibular joints, although it could not be guaranteed to
cure the facial pain, and it would help treat the angular cheilitis perhaps in
conjunction with antifungal medications. He did not believe her age was a
contra-indication to jaw corrective surgery, but agreed that the incidence of
problems with surgery is increased in patients older than 40 over younger
patients. He said that does not mean patients over the age of 40 should not
have this type of surgery provided these problems are discussed beforehand.
His own verbal information to patients includes that the risk of permanent
numbness to the lip is higher in older patients. His mention of the chances of
non-union is that it is extremely low, and his standard warning does not relate
that risk to age.
His reports do not reflect his knowing that Mrs Paterno was a smoker, and do
not mention whether that was a contra-indication for the surgery nor whether
it increased the relevant risks.
Mr Jones maintained his opinion that the treatment plan was the best chance
of curing her problems, despite its unfortunate outcome, after he examined
her in January 2007.
The plaintiff relied upon the expert opinion of Professor David, an oral and
maxillo-facial surgeon, whose approach as head of the Australian
Craniofacial Unit in Adelaide would, he said, be to treat a patient such as Mrs
Paterno by having her seen by various members of a team of specialists,
including an orthodontist, but also speech pathologist and social worker if
surgery to change facial structure were to be contemplated. He had her
assessed by such a team in order to give the medico-legal opinion sought
from him by the plaintiff’s solicitors.
Professor David’s view was that in a woman of Mrs Paterno's age, there was
a higher than normal risk of non-union of bone and associated complications
such as nerve damage in performing a sagittal split osteotomy and, for that
reason, it is unlikely that he and his team would offer a woman of her age
with her condition this solution for her facial discomfort. He said that the
presenting complaint of pain could be treated with the trial of a splint to raise
the space between jaws vertically, and that would ascertain whether the
complaint of pain was due to the temporomandibular joint, a proposition of
which he was not convinced.
As part of Professor David's team, the plaintiff was examined by Dr Michael
Nugent, an experienced orthodontist. He said that it would be unusual for him
to recommend a program of orthodontics, surgery and complicated
restorative dentistry (implants etc) in a patient presenting in her late 40s
because at that age the risk of complications following surgery to the
mandible is high. In such cases he would recommend the most conservative
program to restore the occlusal function, which would be dental (orthodontics
and restorative dentistry, including implants in appropriate cases).
Mr Ian Carlisle, an experienced plastic surgeon who also has training in
dentistry, and specialises in oral and facial surgery, gave evidence both as to
his treatment of the plaintiff on referral by Mr Hookey, and also as to issues
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relevant to the appropriateness of the treatment. He said that in his
experience, this sort of orthognathic surgery would only be performed for pain
or for cosmetic reasons. If it were for pain, you would want to try to establish
whether the surgery was likely to relieve the pain, and in those circumstances
it would not be uncommon to have a bite raising appliance made and worn
for some months. If it did not improve the pain "a lot", it would be his view that
one would probably not proceed with the surgery.
A further factual issue going to the appropriateness of the treatment plan
emerged during the hearing. In his oral evidence, Mr Hookey said that both
then and now it has been his firm policy not to perform tooth implants on
patients who are smokers. He said the reason for this is that there is too high
a failure rate - of between 15% to 20% - in smokers. This was not specifically
pleaded in the statement of claim, for which reason the defendant's counsel
urges that it should not be entertained at all.
I am satisfied that the reason that this had not been pleaded was that it was
unknown to the plaintiff or her lawyers until it emerged during the hearing. It
had not previously been mentioned in any of the defendant’s pre-trial
documents, including a relevant answer to interrogatory, was not mentioned
in any of the defendant’s medical experts’ reports as being part of their
instructions, nor in any discovered documents that were in evidence. Mr
Hookey said that he told the plaintiff this at the first consultation, but later said
that it was contained in an information brochure she was given. I can see no
mention of it in any of the information sheets he claims to have given her those she acknowledges receiving or those she did not recall receiving but he
said were by practice handed out by his receptionist. When the proposition
was put to the plaintiff in cross-examination that Mr Hookey had told her that
his policy was not to perform implants on smokers, her answer was: "That’s
what I went to see him for, for the implant". The defendant’s counsel argues
that this was a non-responsive answer to the question; it was, but my
impression at the time was that it was spontaneous, reflected genuine
surprise without opportunity for reconstruction, and was truthful.
Not only did the treatment plan Mr Hookey recommended include implants,
so did his quotation for the cost of his parts of the treatment, and his own
treatment card sleeve for her notes prominently "Implants/Orthog". This was
said to have been filled out by his staff on his instructions on the day of the
first consultation, when she told him and he noted that she smoked.
I am satisfied that all of this evidence indicates that implants were an
intended part of her treatment plan. Indeed, the suggestion of Dr Schwartz
had been for the implants to be the first step, and then used as anchors for
the orthodontics. Mr Hookey’s reason for disagreeing and preferring to leave
them until last was said to be primarily because the implants could move or
be displaced during the surgical stages. There is no mention in the letter to
Drs Schwartz and Romano that he would not do the implants if Mrs Paterno
continued smoking. Nor is there any suggestion in the defendant's own oral
evidence or his treatment cards that he thought it relevant to check with her
or remind her along the way, that she should be giving up smoking if she
wanted the implants as the end result.
I am satisfied that Mr Hookey never told Mrs Paterno that it was his policy not
to do implants on smokers, and would not do them for her unless she
stopped smoking. I doubt that this was in fact his policy. However, if it were, it
would in my view be enough of itself to indicate that the entire treatment plan
was inappropriate for her because it was to be undertaken without
ascertaining whether its final stage was likely to be achievable, i.e. without
establishing that she even intended to try to stop smoking.
Assuming that it was not in fact Mr Hookey’s policy not to perform implants
on a smoker, I have reached the view that it was not necessary for this
aspect of the inappropriateness of the treatment plan to have been
specifically pleaded for Mr Hookey’s evidence about it to be taken into
account as relevant. In my view, it goes to the more general proposition of
the appropriateness of the treatment plan including surgery for this patient. It
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is an implicit acknowledgement by the defendant that the fact of her being a
smoker increased the risk of failure of at least one stage of the treatment
plan, a stage which in lay terms was the part she wanted, the replacement of
missing teeth to improve her chewing ability and lift or support her upper back
jaw.
The defendant argues that the allegation of an inappropriate treatment plan is
to be assessed in light of the distinction made in the authorities between
whether the alleged negligence is in diagnosis and treatment on the one
hand, or in the provision of information to the patient to enable informed
consent on the other. It is said that the appropriateness of the treatment plan
in this case falls into the category of diagnosis and treatment, and for that,
the decision as to the requisite standard of care will rely heavily, if not
entirely, upon professional opinion as compared with it falling to the Court to
determine what standard should be expected from the medical profession in
the provision of information and advice to the patient.
The current case is not one of misdiagnosis - all of the professional opinion
indicates that Mrs Paterno had a Class II, Division II malocclusion. Whether
that was the cause of the facial pain, which was one of her presenting
symptoms, is less certain - Professor David doubted it, and most other
opinion, including that of Mr Hookey, was that the combined surgical
orthodontic treatment being recommended would not necessarily eliminate
that pain. That the malocclusion was the cause of her angular cheilitis was
not disputed, but all of the medical and dental opinion was to the effect that
surgical intervention for angular cheilitis alone was not warranted.
As to what was reasonable to recommend as treatment, there is a division of
opinion between one body of professionals, including Mr Hookey and Drs
Schwartz and Taylor and Associate Professor Jones, as opposed to that of
Professor David, and Dr Nugent. It is not for a court to decide whether it is
appropriate or preferable to have consultation about a patient by a team
consisting of a dentist, orthodontist and oral surgeon, or one consisting of an
orthodontist, oral surgeon, speech therapist and psychologist. It seems to me
that those issues together with the technicalities of diagnosis and
performance of treatment are what have been said to be issues on which
courts will rely largely if not entirely on professional opinion.
I am satisfied from the evidence outlined that the treatment plan was
technically the optimal way to create a normal occlusion in the plaintiff’s
mouth. However, I am also satisfied that the decision to recommend it did not
adequately take into account its suitability for her in light of the relatively
limited extent of her presenting problems and the heightened risk factors in
her circumstances.
So far as alleged negligence in recommending treatment is concerned,
professional knowledge in the field is clearly predominant to identify available
treatment options. However, I do not understand that to mean that the
question as to whether an appropriate standard of care has been met in a
particular case, that depends solely on whether the treatment offered or
recommended is in accordance with what a respectable body of other
professional opinion says was appropriate to offer. The reason is the same
as the basis for the courts rather than professionals deciding whether
adequate information or warnings have been given - as summarised by
Gummow J - "Except in cases of emergency or necessity, all medical
treatment is preceded by the patient's choice to undergo it. In legal terms, the
patient's consent to the treatment may be valid once he or she is informed in
broad terms of the nature of the procedure which is intended. But the choice
is, in reality, meaningless unless it is made on the basis of relevant
information and advice". It seems to me that the appropriateness of
recommendations as to treatment must, once the technical options are
identified by professional opinion, be judged in light of the particular
circumstances of the patient. Those circumstances would include a weighing
of the nature of the treatment including its intrusiveness, its risk factors,
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against the nature and severity of the presenting problems which the
treatment is aimed to resolve, and its prospects of doing so.
None of the professional opinion in this case suggests that angular cheilitis
alone warranted the surgery. It could be treated with topical anti-fungal cream
and, although it was likely to recur if structural change to the plaintiff's mouth
were not undertaken, the presenting symptoms of angular cheilitis were
simply too minor to have warranted such substantial surgery.
As Mrs Paterno did not seek treatment for cosmetic reasons, any potential
aesthetic improvement which the professionals might have anticipated is
entirely irrelevant as a justification for it. As it eventuated, the result of the
surgery to Mrs Paterno has been a much worse aesthetic effect to her whole
face, permanent asymmetry as well as scarring, a prospect of which she
patently was not warned at all.
While recognising that the totality of presenting symptoms is essential to
recommendations for appropriate treatment, the predominant reasons to
recommend the treatment, therefore must have been to improve her biting
and chewing ability, and to relieve her pain. Albeit with hindsight, she
described the severity of the pain as not even up to one on a scale of 1 to 10
- just a discomfort and feeling that something was not right, and not constant.
The consensus is that alleviation of the pain was not guaranteed by the
surgery in any event. Despite Dr Taylor's and Mr Hookey’s evidence, I am
satisfied by the evidence of both Professor David and Mr Carlisle that the trial
of a splint device for some months to see whether creating more vertical
height would relieve the pain was a more appropriate approach before
recommending surgery of this extent if such surgery were aimed at alleviating
the presenting pain which at most was of a very moderate level.
As to the purpose of correcting or improving Mrs Paterno's ability to bite and
chew, I am satisfied that, without the orthognathic surgery, alternative
methods of improving her bite were not without limitations or downsides.
Partial dentures were mentioned in evidence as possible, but described as
outdated dentistry by Dr Taylor, with some discomfort, and Mr Hookey said
that the lack of space in Mrs Paterno’s mouth would have limited their
effectiveness. The use of implants alone was said by Mr Hookey to be
impractical because of a lack of vertical height allowing access to place them
in her limited jaw space. On the evidence, it does not appear that any of
these were even mentioned to Mrs Paterno - the only apparent alternative
discussed being the "simplest plan" of orthodontically pulling the upper front
teeth back, mentioned but dismissed by Dr Schwartz .
Also relevant to the recommendation of treatment were the factors that
increased the standard risks of those procedures in her case, namely, her
age and her smoking habit, which I am satisfied increased the risk of her jaws
not healing satisfactorily, as well as the risk of permanent nerve damage.
The seriousness of the presenting condition and its likely future, including any
potential deterioration in the patient's health without the treatment, would
often be important. In this case, they appear to have played no role, except
that it was accepted that the angular cheilitis had been a recurring problem,
and would continue to recur, the facial pain to the extent it disturbed her had
been present for some months, and her biting and chewing difficulties were
unlikely to improve without correction. There is no evidence that her condition
was likely to deteriorate. As against that, she was being recommended a
treatment plan that would at best take 18 months to two years to complete,
involving her in two stages of surgery under general anaesthetic and with
much post-operative discomfort from swelling, pain, some prospectively
temporary numbness, difficulty eating and many, many months of the
discomfort and some pain involved in braces, bands, and expansion of her
palate by orthodontic means.
The defendant's counsel urges that I infer from the fact that Mrs Paterno did
agree to the treatment plan, knowing what it included, that she must have
been considerably troubled by her presenting complaints. Her evidence does
reflect that she was told about each step, and I accept that by agreeing to it
she must have been willing to undergo considerable and protracted and
expensive discomfort. However her agreement to it presupposes not only that
its risks were adequately explained, but that she was adequately advised that
she had other options, including of doing nothing.
50. In these circumstances, the recommendation of a complex and protracted
course of treatment, of combined surgery and orthodontics, to achieve a
technically corrected jaw alignment without exploration of more conservative
measures to improve her chewing ability and to test whether the presenting
pain would be significantly relieved by jaw raising, in my view fell below the
reasonable standard to be expected of a professional person recommending
significant surgical treatment with its attendant risks. Further, if it were Mr
Hookey's opinion that there was a high risk of implants not being successful if
the plaintiff remained a smoker, it was, in my view, an even less appropriate
treatment plan to recommend.
Was the plaintiff adequately warned of the risks?
51. A doctor has a duty to warn a patient of all material risks inherent in the
proposed treatment; a risk being material if in the circumstances of the
particular case a reasonable person in the patient’s position if warned of it
would be likely to attach significance to it or if the medical practitioner is or
should reasonably be aware that the particular patient, if warned of the risk,
would be likely to attach significance to it. In the present case, the specific
allegation is that there was failure to warn of what are alleged to be the "high
risks" of non-union of bone, and of nerve damage. The defendant concedes
that if any risk which caused her injury can be called a "high" risk, then it
would necessarily be a material risk.
52. The allegation that there was negligence in failure to warn of the risks of the
treatment requires as a first step identification of what risks may have
required a warning by reference to what risk or risks eventuated, or what was
the cause of injury to the plaintiff. There must then be consideration of
whether those are risks of which warning ought to have been given, and if so
whether adequate warning was in fact given of those risks.
53. The defendant argues that the case fails at the first step, and does not even
get so far as consideration of whether there were adequate warnings of those
risks, because the evidence does not establish that the injuries suffered by
the plaintiff and, in particular, the chronic severe pain in her jaw which has
been central to her continued suffering, were caused either by non-union of
bone or by nerve damage.
54. While I agree that the evidence does not support that Mrs Paterno’s chronic
ongoing jaw pain was caused by the non-union of bone, I am satisfied that
she has suffered significant injury as a result of it. It is clear that there was in
fact non-union of bone on both the right and left sides of her mandible from
the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous
union, her jaw remained unstable, in a "bucket handle" effect, after the
orthodontic braces were removed. That condition required surgical remedy by
fusion, which unfortunately still left her with a permanently misaligned jaw
with significant aesthetic and functional detriment, to say nothing of a still
imperfect occlusion and worsened morphosis.
55. In relation to the chronic pain on the right side of her jaw, the defendant
argues that the evidence does not support a positive finding that it was due to
nerve damage, and that its cause remains vague, with possible psychological
aspects.
56. Mrs Paterno complained of pain on the right side of her jaw very soon after
the operation when the effect of local anaesthetic had worn off and as the
immediate swelling abated. She had not had such pain before that surgery.
By late July Mr Hookey was prepared to prescribe mercindol forte for it,
noting that the general condition of the post operative jaw was "settling" by
which he says he was not referring specifically to pain but the overall
57.
58.
59.
60.
61.
62.
63.
operation result. By early November had decided to schedule a reopening of
the right split site, as a result of her continuing complaints of pain.
Professor David described the proximity of both nerves and major blood
vessels in their passage through and near the mandible and their proximity to
the area of the operation. His opinion was that major damage to the sensory
nerve on the right side of her face and minor damage to the motor nerve on
her lower lip were responsible for the pain and the numbness respectively.
Associate Professor Jones attributed the hyperaesthesia to damage to the
inferior dental nerves, which he notes are anatomically positioned within the
jawbone. After examining the plaintiff, he found the lower branches of the
trigeminal nerve were not functioning when tested. She had a complete
anaesthesia of the left mandible nerve and painful dysesthesia of the right,
which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was
responsible for her facial pain, although he could not determine exactly
whether it was the initial surgery of Mr Hookey or subsequent remedial
surgery which caused it. He noted the incidence of permanent anaesthesia
and unfortunately dysesthesia associated with this operation increases with
increasing age, however the painful dysesthesia is rare.
Mr Ian Carlisle believed that there had been damage to the inferior alveolar
nerve, to which he said there is almost invariably some irritation during the
surgery because the process is to split bone on each side of the inferior
alveolar nerve. He considered that the bucket handle effect of the non-union
was relevant and said that achieving the union of bone, by the operation he
performed, does not necessarily get rid of nerve damage pain. He said "any
nerve that ‘s been damaged can go on and perform and behave in a way that
can cause unremitting pain". He said altered sensation from nerve damage
can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and
although he could not give figures on what proportion would be burning pain
as a result, he said it was highly unusual but does occur.
A specialist neurologist, Dr Owen White, was not prepared to say that the
plaintiff’s pain was clearly neuralgic, largely because when he saw her in July
2001 her complaints of facial pain were diffuse and bilateral, and there had
been no offset which would be expected by then. However, he saw her only
once, at the request of Mr Carlisle who was still treating her at that stage. I
note that despite Mr Carlisle’s protracted attempts to alleviate her ongoing
pain without success, he still said that he had always believed her complaints
of pain to be genuine. In my view Mr Carlisle was in a better position to
assess the plaintiff’s condition over a considerable period of time, and in this
case I would accept his view on the likelihood of nerve damage over that of
Dr White, despite his area of specialty, especially as it is supported by the
opinions of both parties’ "expert" maxillo-facial surgeons.
I am satisfied by these opinions that the severe burning pain to the right side
of Mrs Paterno's jaw which developed soon after the surgery of July 1998
was caused by nerve damage. There was some exploration as to whether
the continuation of that pain beyond the various remedial operations and for
which injections such as those administered by Mr Carlisle and Dr Courtney
have provided no lasting relief, may be perpetuated by the process called
central nerve sensitisation. Whether that is to be categorised as physically or
psychologically caused perception of pain in my view does not matter in this
context, because it was a sequel to physical damage to the nerves in the
vicinity of the mandible where split on the right side, and if the pain has
become intractable through a combination of physical and superimposed
psychological features, it is nevertheless factually caused by the damage to
the nerve caused in the original surgery.
Having identified that non-union of bone and nerve damage were each
injuries to the plaintiff caused in this surgery, the next question is whether
those eventualities were "high risks" associated with it in her circumstances.
The eventuality of non-union of bone appears on the evidence to be a rare
consequence of this operation. Mr Hookey stated that he had never known it
to occur before. Both Mr Jones and Mr Carlisle acknowledged it to be a
known possible consequence of which they would give patients warning,
although they confirmed that it was very rare. Although Mr Jones' own
warnings to patients do not specifically detail any increased risk of non-union
as a result of age, he accepted that age increases the risks of this surgery.
Mr Carlisle said there was no question that age increases the technical
difficulties in performing the operation. Dr Turner conceded that in principle
age increases the risk of the non-healing of bones. While Mr Hookey still
knows of no other instances from the plaintiff's, it is a risk of which he now
says he ought to warn.
64. If the question were whether the risk of non-union of bone was a material risk
inherent in the proposed treatment, I am satisfied that it was, and therefore
that warning ought to have been given of it. That is because in my view it is a
different risk from the risk of malunion, which most of the witnesses
acknowledged ought to be the subject of a warning. The defendant's counsel
argued that the consequence of non-union was really the same as that of
malunion, being the need for further corrective surgery. In my view, the risk
was and is different, as in fact proved to be the case with Mrs Paterno. The
risk of mal-union is that, while the process of the bone uniting occurs, it does
so leaving the bone aligned in the wrong position. Such a situation has the
consequence of further surgery being needed (if the misalignment is to be
corrected), with the risks that any further surgery would involve, but with the
prospect that the patient's bones would ultimately re-unite. When the problem
is non-union, further surgery with attendant risks is the likely consequence,
but in circumstances where the patient's propensity to have her bones
naturally heal and re-unite is diminished and, as occurred in the plaintiff's
case, it may be necessary to engage in more extensive and more serious
surgery such as bone grafts to ultimately achieve union of the bone, whether
in the appropriate position or not.
65. The statement of claim, however, only alleges a failure to warn of "high risks"
attributing that description to the risk of non-union of bone. On the evidence
in this case I am unable to find that that was a high risk due to its extremely
rare incidence, even after allowing that it was greater than for an average
patient due to the plaintiff's age and being a smoker. I would only find nonunion to be a "high risk" if in combination with other risks or even if in
combination only with that of nerve damage. Accordingly, although I am
satisfied that Mr Hookey did not in fact tell Mrs Paterno that there was a risk
of non-union, I am not satisfied that it could separately be called a "high risk"
of which he ought to have warned in itself. In light of my finding about the risk
of nerve damage alone, however, the finding as to non-union does not
prevent the consequences of it being taken into account if the defendant
failed to adequately warn of nerve damage and the operation would not have
occurred if he had.
66. So far as the risk of nerve damage was concerned, ultimately the defendant
conceded that the description "high risk" of nerve damage applied in Mrs
Paterno's case once her age and the fact she was a smoker were factored
into the already significant statistics of patients who may have permanent
nerve damage. Mr Masel argued, however, that such nerve damage could be
expected to cause permanent numbness or diminished sensation, whereas
the consequence of severe hyperaesthesia is most unusual, and did not
require mention or warning to the patient. To this, the plaintiff's argument is
that it is not necessary that the precise symptoms of the injury be foreseeable
and the subject of warning, but the injury itself, so that with hyperaesthesia
being a known although less usual consequence of nerve damage, the
defendant is responsible nevertheless for that consequence because there
was a high risk of causing the injury from which it has resulted, that is, the
nerve damage. I am satisfied that it is appropriate to address the question in
that way, and I am therefore satisfied that in order to fulfil his duty of care, it
was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk
of her being left with permanent nerve damage as a result of the second
operation.
67. Taking into account of the evidence including that of of Mr Jones and Mr
Carlisle as to what they would explain to a patient in such circumstances, I
am satisfied that a warning to Mrs Paterno was required which informed her
that there is a percentage of patients for whom the effects of nerve damage is
permanent, that the risk to her of this occurring was higher because of her
age and additionally because she was a smoker, and that although usually
nerve damage from this operation resulted in numbness or similar change in
sensation, nerves can always react by causing pain.
68. The next question must be whether the warnings actually given were
sufficient.
69. There is considerable dispute as to what exactly occurred and was said
during the first consultation on 4 April 1997. Although its details are extensive
in the evidence, and help define the credibility and reliability of both parties,
there are ultimately very few factual issues to decide on whether adequate
warnings as to the risk of permanent nerve damage were given by Mr
Hookey to Mrs Paterno.
70. In general, I have considerable reservations about the reliability of the
evidence of either Mrs Paterno or Mr Hookey. The hearing of this case
extended over some weeks, and was very stressful for each of them. Each of
them spent many days (with some interruption for interposed witnesses) in
the witness box, being questioned by experienced barristers asking them to
recall events which both of them sincerely wish had never occurred. The
critical events occurred ten years ago. It was clearly very stressful and
distressing for Mrs Paterno to re-travel in detail all that has occurred over the
last ten years, being reminded of her life before the treatment began, and the
effects of her subsequent suffering not only on herself but on her husband
and children. It was clearly stressful for Mr Hookey to have his professional
judgment and skills questioned and examined by other professionals,
especially as they have the benefit of hindsight. I take all of this into account
in assessing both the credibility and reliability of each of the parties as
witnesses.
71. In making findings on this issue, I have taken into account not only that the
passage of time has inevitably affected each witness's version of events, but
also that they have each inevitably reconstructed memory to a considerable
extent. From the plaintiff's point of view, there is almost inevitably an aspect
to her recollection of believing that if certain matters had been said, she
would have recalled them. She has undergone much distress, and is
suffering the effects of strong medication which also must affect her memory
and her ability to concentrate during extended and detailed questioning. As to
Mr Hookey's recollection, I conclude and, indeed, he admits, that he has very
little direct recollection of what was actually said at various consultations with
Mrs Paterno. I conclude that his version of what was said during each
consultation was almost entirely reconstructed, in part from what his usual
practice was, in part from his notes and contemporaneous correspondence,
and in part having had the opportunity to hear or read the views of many
other doctors subsequently asked to give their views. What he provided as a
"transcription" of his notes was clearly not mere transcription but extensive
reconstruction, and the preparation of that in itself could well have blurred
any chance of his knowing now what actually was said at the relevant
consultations.
72. Turning to whether the defendant in fact adequately warned the plaintiff of the
high risk of nerve damage with permanent consequences to her, the plaintiff
says that he did not warn her of the risk of permanent nerve damage at any
time prior to the sagittal split osteotomy on 16 July 1998, whether in the initial
consultation where he says it occurred, in brochures, or when she returned to
embark on that stage of the treatment on 30 May 1998. She said she had
been told that there could be pain just after the operation, but that she would
be given pain relief. She was told the lip might be numb for a while, but she
would regain that sensation after a few days, but he did not mention the
trigeminal nerve or nerve pain or any percentage of the risk of short term or
long term damage to the nerves.
73. The defendant said in his oral evidence that he told the plaintiff by
demonstrating on a model skull the passage of the nerve through the
mandible, that in 95% of cases the nerve is injured with the operation, that it
is a feeling nerve to your lip and chin and you must expect to feel numb in
your teeth and in your lip and chin after the operation, that it is a frustrating
feeling, but generally recovers over a 12 month period and the sensation is
like having a foot recover from pins and needles over an extended period. He
said he told her that one in ten patients will still be numb at the end of 12
months and, beyond that, recovery of significance was not expected. He also
said that it was his practice to hand out information brochures on
orthognathic and jaw surgery at the first consultation, this being done by his
receptionist. There was some uncertainty about which version of these
prevailed at the relevant time, and Mrs Paterno denied that she received
them at the initial consultation. If she was given them, the tendered versions
so far as could be relevant state:
"Pain
Usually patients do not require strong analgesics(pain control medication)
following jaw surgery, but appropriate analgesics are prescribed when
necessary both when you are in the hospital and after your discharge"
"Complications
…. Damage to the nerve in the lower jaw which supplies sensation to the
lower lip can occur and this can lead to a feeling of numbness in the lower lip.
This is usually only transitory in nature…."
In my view neither of these was sufficient to inform a patient of any risk of
long term pain, nor that risk of sensory consequences from nerve damage
could be permanent and was at least 5%, and higher in people in certain
categories.
74. In answer to a relevant interrogatory, the reference to details of his warning
as to nerve damage was limited to "There is a risk of nerve damage". If this
were the limit of what he said it made no differentiation as between temporary
and permanent damage, nor the level of risk to the plaintiff
75. Mr Hookey admits that he does not have a direct memory of most of the
specifics of what he said to Mrs Paternoo, and that what he said in evidence
was largely based on what it is his usual practice to say. Further, he said that
he does not, as a habit, use percentages in discussing with patients the
number of them who would get numbness, as he feels that it is more
meaningful to say one in ten or one in twenty. He agreed that in combination
the plaintiff's age and her smoking made this risk higher, but he said he did
not tell her that specifically as he does not like to risk offending patients, so
he says he factored into the figures he used her age, but it would seem not
her smoking. His transcription of his notes, it eventuated, was not a direct
transcription and he had no recollection of some of the detail as to warnings
which it included.
76. Also present at the first consultation was Dr Romano. His evidence is that the
defendant did not warn the plaintiff of the risk of permanent nerve damage at
the first consultation. Without analysing all of its details, I decline to give
much weight to Dr Romano's evidence about these matters because, in my
view, his perception of the events is also heavily influenced by hindsight,
there has clearly been an acrimonious falling out between him and Mr
Hookey in the meantime, and in my view his evidence is also probably
influenced by his knowledge that he was a part of the events that took Mrs
Paterno to Mr Hookey and that he encouraged her to have confidence in Mr
Hookey's advice and recommendations.
77. Mr Hookey concedes that he did not explain to the plaintiff that her age or
being a smoker increased the risk of her suffering nerve damage as a result
of this operation, and he concedes that there was in her circumstances a high
risk of that. Even were I to accept his version of what was said – and I do not
in its entirety because it is so very heavily reliant on reconstruction - his
explanation of the likely consequences or symptoms from nerve damage, in
my view, significantly underrated them, even though severe pain is not a
common result. To compare permanent nerve damage as being like pins and
needles in one's foot in the long term, in my view, significantly underrated the
significance of the long-term effects of nerve damage, even if they were more
likely to be altered sensation than chronic pain. Again in the context of the
presenting problems for which the operation was being undertaken, I
consider that there was inadequate warning of the risk of the consequences
of nerve damage and permanent symptoms from it.
Would the plaintiff have refused the treatment if adequately warned?
78. The final crucial question on liability is whether I can be satisfied on the
balance of probabilities that, if adequately warned of the risk of permanent
nerve damage, Mrs Paterno would have refused the treatment plan.
79. The plaintiff says that if she had known that there was a high risk of
permanent nerve damage, she would not have agreed to the treatment. She
was wary having never heard of this operation before, and she says she felt
that Mr Hookey was overly confident in his discussion with her, but was
reassured by Dr Romano’s confidence in him. Her evidence in this regard is
inevitably given through what has often been called the "prism of hindsight". It
is therefore appropriate to look at other evidence that might help to
objectively assess what her subjective decision whether to have the
treatment is likely to have been if she had been adequately informed or
warned of the risks of the treatment.
80. On this issue the defendant calls in aid evidence as to previous surgery
undergone by the plaintiff. She had a left stapedectomy in approximately
1997. She was in her late 20s, and after the birth of her third child she had
noticed herself losing hearing in both ears, but particularly on the left. She
said she had been advised that she was likely to become totally deaf in the
left ear if she did not have this operation. The defendant called retired ENT
surgeon and consultant, Mr Hugh Millar. Unsurprisingly, Mr Millar had no
personal recollection of Mrs Paterno and he had not been able to find his
records of treating her. He confirmed that the operation would have been to
avert permanent likely deafness in her left ear. He said that in those days
they did not inform patients much about risks and it is likely he would just
have told her the percentage chances of the operation succeeding, which he
said were approximately 80%. In my view, this evidence did not advance the
defendant's case at all. I see no similarity between the circumstances of
accepting that advice and undergoing Mr Hookey's treatment plan.
81. The defendant also called Dr Graeme Dennerstein, the plaintiff's
gynaecologist, who confirmed treating her in late 1991 and early 1992 when
her presenting problems were prolonged and heavy bleeding and pain during
her periods. He advised and carried out a laparoscopy, and told her that she
could either undergo a hysterectomy at that stage or wait until after
menopause (she was then aged 41). Although the defendant pointed to some
divergence between the plaintiff's recollection of it being two to three months
later with ongoing pain and prolonged heavy bleeding that she returned to Dr
Dennerstein, whereas his notes indicated it was more like six weeks later, Dr
Dennerstein's evidence was that when she returned in January 1992,
although she was happy with less bleeding and pain, he found her uterus to
be enlarged to the equivalent of a ten week pregnancy by a significant sized
fibroid. This led to his recommending a hysterectomy at that stage, which it
82.
83.
84.
85.
was his view was required. I am satisfied that the considerations involved in
agreeing to that surgery were of considerably more pressing importance than
the symptoms and presenting problems that sent her to her dentist and
eventually to Mr Hookey.
I also take into account that Mrs Paterno has consented to a number of
subsequent operations and other forms of treatment. The five remedial
operations on her jaw, as well as such treatments as the hyperbaric chamber
and ketamine infusions, are indicative that she has been prepared to accept
many forms of recommended treatment notwithstanding that they may have
serious consequences, although the extent of warnings and explanations she
has been given is unclear. The dire circumstances in which she found herself
after Mr Hookey's second operation can be seen as influencing her to try
whatever was recommended, at first out of faith that there would be
significant cure for her difficulties and ultimately out of desperation to find
some relief from her chronic pain. Having heard her and her husband’s
evidence I am satisfied that this is the more likely inference to draw than that
she would accept any recommended treatment for any complaint.
The strongest argument for the defendant that the plaintiff would have
undergone the treatment even if more fully advised about the risks of nerve
damage, is that she was apparently prepared to agree to the five step plan
which, in itself, was to involve protracted discomfort and expense over an 18
months to two year period. That, however, presupposes that she was
adequately advised of the extent of that discomfort and the risks attached.
My impression of Mrs Paterno is that she is a sensible woman of reasonable
intelligence who was, however, heavily reliant upon the advice of the
professionals she consulted. I am satisfied that between the faith expressed
in Mr Hookey's ability by Dr Romano, the support for the plan from Dr
Schwartz, and the confidence of Mr Hookey himself and his talk of his
previous successes with the surgery, the force of Mr Hookey's optimism is
what encouraged her to agree to the plan. I am satisfied that, had the nature
of the operations been more adequately explained, in particular the high risk
of permanent nerve damage, she would not have agreed to proceed.
This is in addition to my finding that it was not appropriate to have
recommended the surgery to her at all, even with more fulsome explanation
of the risk of nerve damage.
Damages
86. There is no dispute that Mrs Paterno has undergone extensive remedial
treatment and that no further surgery is likely to improve the current state of
her mouth and jaw. She has been left with permanent cosmetic
consequences of scarring on her neck, from Mr Carlisle’s remedial surgery
which required access to both sides of the jaw through the skin, and a
misaligned lower jaw so that her face is asymmetrical, and noticeably
extended on the right hand side. She has a distorted bite, although two
crowned implants on each of the left and right rear lower jaws are satisfactory
in restoring some chewing ability. She has some sensory loss to her lower lip
on the left side. On the right, she is still suffering chronic pain on the outer
jaw, and associated neck pain.
87. She takes large quantities of a variety of medications, and in particular is now
dependent on opiate-based pain relief. This has had the consequence of
serious bowel problems, for which she has described at least two periods of
previous hospitalisation and in respect of which further surgery is apparently
contemplated.
88. The interplay of medication for those conditions has distressing
consequences in her daily living. The effect of the morphine has significant
consequences on her concentration and probably is also connected with
some of her oral disabilities, when her tongue becomes caught and words
are slurred and the right side of her mouth, especially the lower lip, sags.
89. There is dispute as to whether the plaintiff is also suffering psychologically.
Her treating psychiatrist, Dr Lavoipierre - who is also coordinating treatment
as part of his specialising in pain management - diagnoses her to be suffering
depression and anxiety and prescribes medication for those. Dr Michael
Epstein examined her for medico-legal purposes, and diagnoses a major
depressive disorder as a result of the chronic pain discomfort and disability
from her jaw surgery. His opinion is that she will continue to need psychiatric
treatment on a regular basis, at least monthly intervals, and considers her
prognosis poor, with it being unlikely that psychiatric treatment would lead to
improvement, but may prevent further deterioration. He confirmed that view
on reviewing her in February 2007.
90. The defendant relies on a report by Dr Alan Jager, who examined her in
December 2006 and concluded that she has either a dysthymic disorder or a
chronic major depressive disorder in partial remission. He noted that her
mood was currently reasonable and she was able to enjoy some aspects of
life, but has insomnia and impaired concentration and libido, noting she was
taking anti-depressants and sedatives. He noted her movements to be slow
and a very slow thought stream, and that she sat hunched over and bent
forward with downcast gaze and furrowed brow. He felt it likely that she
fulfilled the diagnostic criteria for a major depressive episode in the past, but
did not currently fulfil those and her long-term depressive illness dating from
1998 was in partial remission as a consequence of her treatment by Dr
Lavoipierre. In his view her psychiatric condition arose as a consequence of
the pain and disfigurement caused by the failed surgery, and that she had
responded quite well to treatment with anti-depressant medication which was
then currently at a modest dosage. He noted the sedative effect of
medication. He thought it unlikely she would achieve a full remission of her
psychiatric condition.
91. The defendant relied on the evidence of Associate Professor Peter J.
Doherty, a consultant psychiatrist from the Melbourne Clinic, who was of the
view that she does not have any compounding or secondary psychiatric
illness to her major problem of pain, which he notes is not a psychiatric
condition. He discounted the prospect of her suffering depression because it
was his firm view that a person who took such care as she obviously did with
her dressing and presentation, did not fulfil the criteria for suffering a
depressive illness. He attributed her problems to the "sick role" he thought
induced and perpetuated by her treatment regime and the attitude of those
around her. He believed however that she required psychiatric and
psychological intervention in order to minimise the secondary effects of her
current treatment, that is, the disabling effects of medications prescribed.
92. Although not a psychiatrist by training, I note that Dr Jane Trinca whose
approach as a pain management specialist is towards extracting patients with
chronic pain from their "sick role", in commenting on Dr Doherty’s report
stated that on her examination of the plaintiff she was a little tearful, had
some lowered mood, and that the history of sleep disturbance and lowered
activity is consistent with both medications and adjustment response to her
chronic medical condition.
93. I am not convinced by Associate Professor Doherty’s reasoning that care in
dressing in itself excludes the diagnosis of clinical depression. In the context
of chronic problems from the jaw surgery, and in light of the overall
psychiatric evidence, I am satisfied that the plaintiff has suffered from a major
mood disorder which has been controlled and prevented from deteriorating
by psychiatric treatment. I am also satisfied that without ongoing psychiatric
medication and support her psychiatric state is likely to deteriorate.
94. The main issue in relation to both general and special damages is whether
her current situation and level of disability is likely to be permanent, or
whether some or all of the debilitating effects of her heavy medication might
be relieved or eliminated, enabling her to become reconditioned to daily
activities in and outside her home, thereby improving her quality of life. This
issue centres primarily around whether a sophisticated pain management
programme is likely to succeed in removing her very heavy dependence on
opiates in the long-term, with the consequence of also relieving some if not
all of the severe bowel complications they have caused.
General damages
95. At the time she first consulted Mr Hookey, Mrs Paterno was aged 47, leading
a busy social and domestic life. She was a much admired and vibrant force in
her family, with her two sons still living at home and a husband actively
engaged in his businesses, especially the reception centre, and in his Italian
club of which he was President. Her children were reaching adulthood and
her daughter had moved out of home but remained close to the family. From
descriptions by her husband and her daughter Susan, I accept that she was a
very vivacious and outgoing person who was, as described by her daughter
"the life of the party at events", who was very creative and artistic, taking
great pleasure in creating special events, entertaining visitors including her
children's friends, and preparing parties for their major birthdays and
milestones. She took great pride in her appearance and, as was commented
on by many witnesses, she still does. Her daughter describes her previously
as being up-to-date with fashion and dressing flamboyantly. I have seen
photos, and viewed brief video footage of her apparently taken about a month
before her first surgery from which she looks as beautiful as her husband
describes her, glamorously dressed and presented and, indeed, showing
great vivacity and enjoyment of the occasion.
96. She was, however, experiencing some facial pain which was not constant,
but enough for her to have consulted her general practitioner. She was also
experiencing angular cheilitis, a condition causing red marks and soreness at
the corners of her mouth resulting from constant moisture caught in the
overlap of skin. This, she was able to mask with make-up, but it would have
required topical cream as it was likely to recur. She was also experiencing
some problems with chewing and biting, and this combination of symptoms is
what led her to consult the family's dentist when her husband had an
appointment.
97. The first stages of the treatment plan devised by Drs Schwartz and Hookey
proceeded without significant complication and although the plaintiff's case is
that had the defendant not been negligent she would not have undertaken
any of this treatment, I make only minimall allowance in assessing damages
for what pain and discomfort she suffered during the first 14 months of the
treatment plan, that is, until after the second operation performed by the
defendant, the sagittal split osteotomy on 16 July 1998. As she had been
warned to expect following that operation, she found herself in pain and
discomfort, with a swollen mouth restrained by bands and greatly restricted
eating. She had been warned of and accepted these effects, and I give them
only minimal weight in assessing her damages. Of themselves they were
temporary and much less distressing than what followed.
98. Very soon after the initial swelling and effect of local anaesthetic abated, she
noticed what she describes as burning pain on the right side of her lower jaw.
She also describes there being swelling like a lump on the right side. The
pain continued, although I take it to have fluctuated to an extent over the next
few months. Although Mr Hookey had not regarded it as significant initially,
he did prescribe Mersyndol Forte, he says at her request. By December 1998
he considered the ongoing pain warranted his operating to remove the
titanium plate and screws on the right side. This was the first remedial
operation performed, at Epworth Hospital, under general anaesthetic. Next, a
further tooth was removed because it was impacting on the tender lower gum
on the right. Three months later, the one remaining lower molar on the right
was removed, as it was suspected of sepsis causing the ongoing pain, as
part of a further remedial operation performed by Mr Hookey on 30 March
1999 when he removed a loose piece of bone and cleaned out the ununited
ends of the bone on the right side and inserted new titanium plates. To
facilitate the March 1999 surgery, Mr Hookey referred the plaintiff for
hyperbaric treatment at the Alfred Hospital Hyperbaric Unit. She underwent
tests for her suitability there and, although the Hyperbaric Unit Registrar, Dr
Leong, considered the tests showed no confirmation of osteomyelitis, she
was given the treatment to increase blood flow to assist in the healing of the
bones. In total, she underwent the equivalent of 29 "dives", the surgery being
performed approximately half way through it. She described this treatment as
"terrible" and she needed to take a Valium before it. Histopathology reports
after the surgery did not confirm osteomyelitis.
99. Meanwhile, she had sought medical treatment for depression, and was
prescribed anti-depressants in late December 1998.
100.
Following the surgery at Easter time 1999, the defendant reassured
Mr Paterno that he had found osteomyelitis, cleaned out the area and was
hopeful that all would be well from there on. However, Mrs Paterno continued
to experience burning pain on her right jaw. Opiates continued to be
prescribed for the pain. Meanwhile, the orthodontic work continued. In
October 1999 Mr Hookey referred her for further opinion to Mr Ian Carlisle,
plastic surgeon (who also had dental qualifications). Mr Carlisle diagnosed
non-union of bone on both sides of the mandible. In conjunction with Mr John
Redman, another maxillofacial surgeon, he recommended surgery involving
bone grafts to re-unite the lower jaw. On 18 December 1999, she underwent
this surgery with the graft taken from her right hip, and she describes
complications in hospital immediately afterwards, as well as severe pain and
distress from this operation, including pain at the graft site. In the course of
time, that operation was found to have successfully re-united her jaw,
although it was unable to be set in ideal position and left her with a
structurally asymmetrical jaw.
101.
Shortly before she underwent the graft surgery, in distress at her
condition, Mrs Paterno had taken an overdose of medication. She was
admitted to John Fawkner Hospital as a result. Although that incident was
clearly extremely distressing to her family and her at the time, and, indeed,
for them to look back upon, from her evidence and from the tenor of
psychiatric reports, I am satisfied that although she has continued to be
greatly distressed, and to suffer psychologically as a result of her ongoing
condition and its symptoms and the effect on her family, she is unlikely to
deliberately attempt such action again.
102.
As her pain continued after the graft surgery had secured the jaw, Mr
Carlisle administered three local anaesthetic injections in September 2000,
into three facial areas, but without successfully relieving pain. In June 2001,
he instilled botox into facial muscles to relieve some spasm, but there was no
significant improvement. She was recommended various bite raising
appliances to stabilise the palate.
103.
Two further remedial operations have been performed on Mrs
Paterno. In September 2001 Mr Carlisle operated to remove the
reconstruction plates after union of the lower jaw had been achieved. In April
2003, there was surgery performed by Professor John Ferguson and Mr
Andrew Heggie in which a re-contouring of the right mandible was
undertaken and four mandibular implants placed. There is no direct evidence
of those procedures through reports or oral evidence of Mr Ferguson or Mr
Heggie, so the extent of that procedure is not in evidence except so far as the
plaintiff describes undergoing a further general anaesthetic for it.
104.
In addition to the five remedial operations and the ultimate result of
continuing to experience chronic pain on the right side of her face, the plaintiff
has been left with permanent numbness in her lower lip and a structurally
altered mouth that still affords her difficulty chewing, and such that at times
her ability to speak is distorted. Her strong medication may well contribute to
her slurring of words, dribbling and slackness of the right side of her mouth,
but there is no doubt that structurally her mouth has been changed, that the
lip is numb, and even were she to be weaned from the extent of medication
she currently takes, these disabilities will not be fully corrected. She has
permanent scarring on both sides of her neck as a result of the surgery in
December 1999 by Mr Carlisle and Mr Redman, who needed to approach the
mandible from outside and through her skin. The appearance of her face will
remain asymmetrical, noticeably extended on the right side compared with
the left.
105.
A further enormous effect on the plaintiff has been the side-effects of
large and continuing quantities of medication. As a consequence of
prolonged use of opiate-based drugs, she has suffered severe bowel sideeffects, to the extent of at least twice being hospitalised for those. This has
reached a stage where as her husband describes, she needs to counter
constipation with substances that cause her to lose control of her bowels
while heavily sedated, and she soils her bed regularly. Approximately a
couple of times a week Mr Paterno needs to help her with this and clean up
after her in the middle of the night, a situation obviously very distressing for
both of them.
106.
There were three admissions to Cabrini Hospital between 2003 and
2004 to help control her pain, and during which medication was adjusted. In
December 2002, in an attempt to take her off opium based pain-killers to
alleviate her bowel problems, she was referred to Dr Peter Courtney, an
Anaesthetist specialising in pain management. He administered ketamine
infusions undertaken in hospital. The defendant emphasises that Dr Courtney
recorded that while in hospital her abdominal pain was her main problem,
and she had very little by way of facial pain except on one occasion, but Dr
Courtney also confirmed that while in hospital two stellate ganglion blocksinjections of anaesthetic- were administered when facial pain increased.
107.
Also of significance has been the quantity of medication which she
has needed for the various consequences of her injuries. The precise drugs
and dosages have been changed over the years, but since at least early
2000 there has been a large quantity of medication to address pain, antidepressants, and various medications for the gastric complications from other
medication. A list of her medications as at June 2006 was provided by Dr
Lavoipierre. As prescribed, she is currently self-injecting 30ml doses of
morphine every three to four hours. While giving evidence before me and,
indeed, from my observations of her during the extended periods of time for
the remainder of the hearing when she sat in Court, it is clear that the
medication in itself has serious consequences for Mrs Paterno every minute
of the day. At times she appears sedated, and at other times it is clear that
the analgesic effect of her medication is running low and the stress to her of
pain is visible on her face, as well as at times partial loss of control of her
speech and facial movements.
108.
The effects of her injuries have very dramatically and seriously
changed the plaintiff's life. Beyond mere ageing, she presents now as a
different person from the one filmed in March 1997, admittedly at a joyous
occasion and "dressed up". I accept that the overall effect has been to
impose on her chronic intractable pain, only partially alleviated by large
quantities of in itself debilitating medication. She has lost a lot of weight and
is physically weakened. I accept that she feels dependent, and at times
humiliated by the extent of her reliance on her husband for physical
assistance. She has lost all confidence to socialise outside her family, and is
described by Dr Lavoipierre as now virtually a recluse, needing constant
assistance and also supervision for her pain, depression and anxiety.
109.
The prospect of Mrs Paterno's daily living being significantly
improved from what it is at present by her successfully undertaking a pain
management program was explored during the hearing. All witnesses,
including her and her husband, agree that if her pain could be controlled
without the need for opiate-based medication, her lifestyle could be improved.
She herself has repeatedly agreed to attempt suggested programs, be they
through pain management clinics or on assessments such as those for this
proceeding as to her physiotherapy, speech therapy and occupational
therapy needs.
110.
For some years now, Mrs Paterno's overall medical and pain
management treatment has been coordinated under the supervision of Dr
Patrick Lavoipierre, a consultant psychiatrist who specialises in pain
management and to whom she was referred by Mr Carlisle in February 2000.
Dr Lavoipierre prescribes the preponderance of pain medication including
what are now morphine sulphate injections of 30 milligrams which she selfadministers every three to four hours. The defendant's case is highly critical
of Dr Lavoipierre's approach. Dr Lavoipierre gave evidence of the extensive
referrals which he has made and coordinated to a variety of specialities to try
to deal with her various ongoing problems, in particular centring around the
enduring pain and also in relation to her gastrointestinal complications. He
describes the addressing of her problems of severe constipation consequent
on narcotic analgesia, starting with Dr Rowan Marks, gastroenterologist, in
August 2002, Mr W. Johnston, bowel surgeon, and, in November 2002,
Professor Peter Gibson, professor of gastroenterology at Box Hill Hospital.
He also describes referral in 2004 to Professor Andrew Kaye, neurosurgeon
at Royal Melbourne Hospital and also to Professor Teddy, who was
apparently a visiting consultant at Royal Melbourne Hospital specialising in
issues dealing with administration of gasserian ganglion radiofrequency, but
this was not recommended for Mrs Paterno and Professor Kaye also offered
no alternative treatment. She has been referred to the Royal Melbourne
Hospital Interventional Pain Clinic and seen by Dr Malcolm Hogg. In his oral
evidence, Dr Lavoipierre indicated it was his understanding that the attempt
to improve her pain management through Dr Hogg has been unsuccessful.
On the basis of Mrs Paterno's own evidence, it might be that it was
suspended until her gastrointestinal problems could be addressed. Dr Hogg
was not called as a witness, nor was any report submitted from him, or any
explanation for not calling him. I am satisfied that I should draw inferences
from the failure to call Dr Hogg that his evidence would not have assisted the
plaintiff and that I should more readily accept the evidence of Dr Trinca, as to
there being prospects but not necessarily success in her gaining acceptance
into and benefiting form an intensive pain management program. I cannot
however speculate as to how far the attempt at the Royal Melbourne Hospital
pain management program progressed, or whether it is still on hold or
abandoned.
111.
The defendant relies primarily upon the evidence of Dr Jane Trinca, a
specialist in pain medicine with a background in anaesthesia, at the Barbara
Walker Centre for Pain Management at St Vincent's Hospital. She assessed
the plaintiff early this year for the purposes of this case, provided reports and
was called to give evidence. Dr Trinca made clear that the assessment she
conducted on the plaintiff was not the extensive assessment which would be
needed to fully evaluate Mrs Paterno's suitability for the pain management
program at the Barbara Walker Centre, although she found no adverse
indicators. Were Mrs Paterno assessed as suitable for and admitted to that
program, the first step before she could undertake the program would be an
intensive detoxification from her opiate-based medication, which would take
up to two weeks as an in-patient. In addition, the gastrointestinal or bowel
problems would need to be separately addressed, as ill-health through those
would not be conducive to success in the pain management program itself.
The program is aimed at improving the level of function of the patient, rather
than in reduction of pain; it is aimed at assisting the patient to acquire
management techniques to live with and adapt to and cope with the effects of
pain and other disabling aspects of her condition.
112.
Dr Trinca noted that Mrs Paterno expressed interest in considering
this approach to managing her current problems, but acknowledges that,
having been unwell for such a prolonged time and having submitted to a
passive management program for such a long while, it would be a large
undertaking on the part of Mrs Paterno to undertake and succeed in the
change of direction proposed by her pain management program.
113.
The program itself involves a team of professionals interacting to
assist the patient to address and adapt to her disabilities. Dr Trinca also
confirmed that sometimes it requires more than one attempt for a person to
succeed at such a program. The selection process is rigorous and
approximately only one in eight assessed is suitable, although some are
excluded because they have more simply solved conditions and Mrs Paterno
has no obvious barriers to acceptance. The assessment process for Mrs
Paterno was described, using a team of different professionals which in her
case would include a dental professional and possibly a psychiatrist if there
were major depression, and sometimes a rehabilitation specialist. The
concept is five days intensive and then three weeks of outpatient visits and a
home program with monthly reviews by three practitioners - a psychologist, a
physiotherapist and a nurse, and normally a six month follow-up and then a
12 month follow-up. Some patients require further follow-up.
114.
The defendant relied also on the views of a number of other doctors
who have assessed the plaintiff over the years and who either directly or
indirectly are critical of her opiate based medication and recommend
measures to try to recondition and rehabilitate her to more active everyday
life.
115.
Dr Peter Courtney, to whom the plaintiff had been referred in 2002 by
Professor Gibson to try to eliminate her use of morphine, was called by the
defendant. His practice is also as an anaesthetist with a pain management
specialisation since 1986. He had administered a course of ketamine to her
which was primarily at the behest of Professor Gibson to enable her bowel
problems to be addressed by stopping the opium. Mrs Paterno had done all
that was asked of her in hospital and she was discharged. He had
administered injections of anaesthetic to address her facial pain on two
occasions during her stay as an inpatient. He always tells patients that the
taking of ketamine is a trial program. He confirmed that people taking
ketamine are often unsteady on their feet and need assistance such as to go
to the toilet and it is possible for them to hallucinate, so he felt it
understandable that her husband was concerned and stayed at the hospital
while she was undertaking this treatment.
116.
He confirmed that if a patient ceases taking narcotics, the pain
persists, but the lifestyle can be improved by the removal of the effect of
narcotics, although in many cases the pain does not change and even
chronic pain is not always controlled by narcotics. He sees some patients
come back every two or three or five years for a "top-up" of the treatment,
although some pain management programs will not accept patients who have
failed other courses. He confirmed that it is the patient's own motivation that
is fundamental for them to continue with a program. He said it was probable,
but not invariable, that the longer a person has been subject to chronic pain
and medication for it, the less likely the patient is to succeed on a future
program. He confirmed that the whole purpose of a pain management
program is to improve the patient's ability to look after him or herself, and
psychologically to try to improve their confidence to do things for themselves.
117.
I am satisfied that under the overall coordination of Dr Lavoipierre, all
reasonable options of obtaining remedial physical treatment for Mrs Paterno
have been tried. I accept from the letters to him from some of the many
specialists in different fields to whom he has referred her; as well as other
consultations such as with Ms Anna Talacko that no further curative solutions
have been offered or are likely to be available.
118.
I am also satisfied that there are good reasons to make further
attempts to remove her reliance on heavy morphine based medication. The
groundwork has been laid for Mrs Paterno through the contact with Dr Trinca
at the Barbara Walker Centre, and it may well be that a formal assessment
for her suitability for that program should be tried. However, there are clearly
significant barriers to her acceptance into such a program, including the need
to deal with her bowel problems, for which Professor Gibson's recently
tendered report indicates that some further surgical action in that regard is
being contemplated, although not to be performed by him and therefore only
in evidence through hearsay. In addition, there are the psychiatric issues and
the initial need for a drug and alcohol assessment specialist, her withdrawal
from the opiate-based drugs. These features, together with the many years of
chronic pain and pain management problems, indicate that while a possibility,
her successful rehabilitation through a pain management program is not a
probability.
119.
Mr Masel submitted that the indication in a recent report that Dr
Lavoipierre intends to send her to another pain specialist to monitor her
medication on a regular basis and to himself confine his ongoing treatment to
her psychological needs is an indicator that she will be taken off morphine. I
do not accept that statement to be such an indication, although as already
stated it is to be hoped that her various longstanding and disqualifying
problems can be addressed to enable her to be accepted into and hopefully
to successfully undergo a pain management program.
120.
Both sides agree that the prospect of the plaintiff successfully
undergoing a pain management program, recovering some more enjoyment
of life, and requiring less in the way of medication and supporting services
such as attendant care in the future, should be treated as a vicissitude which
might reduce the future need for services and treatment, and so far as the
prospects of her lifestyle improving relevant to her general damages.
121.
So far as general damages are concerned, I take into account that
there is a prospect for some improvement in the plaintiff's lifestyle, either
through a successful pain management program or through the provision for
her of the speech therapy, physiotherapy and occupational therapy services
in respect of which evidence was given by Jan Mackey, Margaret Darcy and
Ms Harris. All of the evidence, however, confirms that even if she were to be
successful in a pain management program, it would be to provide her with
strategies to deal with her ongoing physical condition, including the chronic
pain. Pain management programs do not cure the pain, but can only assist
the person to cope with it.
122.
Mrs Paterno will, as is conceded by the defendant, live for the rest of
her life with pain and with the physical consequences of a misaligned jaw,
misaligned bite, numb lip and scarring on her neck. For reasons already
stated, I do not consider that she will regain the life she previously had or the
life she could have expected to have by now, aged 57 with her children
established in careers as adults, a husband still devoted to her but who would
have either still been engaging in running one or more businesses, or
spending his retirement enjoying the social activities which they had shared
through his Italian club, travel which she feels unable to undertake in her
physical condition, and indulging in her obvious taste for smart clothes,
entertainment and socialising.
123.
The aim of general damages is to compensate, so far as money can,
the suffering caused by another person’s negligence. Taking into account the
protracted and extreme suffering of the plaintiff over the last near nine years,
through five remedial operations and the plethora of other attempted
treatments, heavy medication with its own consequential problems, and her
ongoing symptoms, I assess her pain and suffering to date as having been
very substantial. She is now aged 57, and the prospect for her future is that
the possibility of a successful pain management program or other supportive
services would only moderate some of the ongoing effects of her injuries and
will not cure them. Allowing that there might be some such moderation of
some of the effects of those in the future, I consider that to fairly but not overgenerously compensate Mrs Paterno for her past and likely future pain and
suffering and loss of enjoyment of life resulting from her injuries, the sum
urged on her behalf of $350,000 is appropriate.
Special Damages
124.
A claim for medical and like expenses to date is made as follows:
(a) Estimate of amount of new Notice of charge
repayable to Medicare Australia $ 38,338.40
(b) Total of amounts paid by and repayable to
HBA Health Insurance $105,256.05
(c) Additional amounts for doctors' fees, pharmacy and
other treatment expenses paid by the plaintiff to date $ 41,638.35
Total $185,232.80
These amounts are conceded by the defendant to have been incurred as
specified and no challenge is made to their quantification.
125.
The defendant argues that there should be offset against those
amounts what is the estimated savings from the plaintiff not having
undergone alternative dental treatment over that period which could have
been expected if she had not proceeded with the defendant's treatment plan.
The defendant provided, after the main hearing was completed, material from
a Dr Alex Fibishenko. Dr Schwartz provided an estimate of the cost of what
he had described as the simplest plan when he referred her to Mr Hookey,
namely, $2,850 with the possible remaking of the upper retainer every four to
five years at a cost now of $150 each.
126.
I am satisfied that at the time she consulted Mr Hookey, the state of
Mrs Paterno's mouth meant that she would require dental treatment over the
following years, even at its most conservative. I am satisfied that the
projected cost of such dental care should be deducted from the amounts that
have been claimed for expenses she has in fact incurred for dental and like
treatment, as a saving. The calculation as put forward by the defendant's
solicitors on 24 May 2007 seems to me realistic and I am not in a position to
isolate any of the particular expenses differently. The amount calculated in
that manner for past costs for dental treatment between 1997 and 2007,
without orthognathic surgery, totals $13,760. That includes an occlusal splint
and partial dentures.
127.
The prospect of the simplest plan to correct her overbite put forward
by Dr Schwartz at a total cost of approximately $3,000 would probably have
been additional so far as I can determine. I am have some difficulty
concluding that it is likely to have been incurred given the dismissal of it by
both Dr Schwartz and Mr Hookey, but I am prepared to allow it as a saving
on the basis that its prospects may have been revisited had their respective
enthusiasm for the "ideal" plan been rejected by her on fuller information as
to its risks.
128.
I therefore deduct from the dental and medical expenses that have in
fact been incurred the sum of $16,800.
129.
In addition, the plaintiff claims an amount for assistance and services
provided to her by her husband since her injuries, pursuant to the principles
in Griffiths v. Kerkemeyer. Those are claimed from 20 July 1998 to the
present on the basis that an average of 11 hours of such care per week has
been provided, valued at the rate of $25 per hour. The defendant does not
challenge the rate per hour, but does dispute that Mr Paterno has provided
such assistance and services as an unpaid carer, as opposed to performing
tasks which he would have been performing even if his wife had not suffered
injury as a result of the defendant's treatment of her. The defendant argues
that 2 hours per week is all that should be attributed to unpaid carer services
resulting form the injuries.
130.
The defendant’s counsel argues that it was likely that Mr Paterno
would have sold his share of the reception centre business by the year 2000
in any event, as his partner had sold out by then in order to care for his
terminally ill wife. It is submitted that on retirement, Mr Paterno was likely to
take over the vacuuming and do his share of other household tasks and
shopping in any event. It is also argued that some of the personal care which
has been provided has been in the nature of over-attentive care, which was
not actually needed but given by choice, such as assisting the plaintiff to eat
by feeding her as she recovered from some of the various periods of
hospitalisation she has undergone.
131.
I am satisfied that Mr Paterno has spent at least 11 hours per week
(little more than one and a half hours per day) on average in assistance and
provision of services to his wife which he would not have performed but for
her injuries, and which were necessitated by her injuries. I am satisfied that
he has in fact spent very much more time than that assisting her, but a
significant proportion of the time he has spent would not be compensable on
these principles. His evidence is that he spends approximately six to seven
hours per day helping her.
132.
There were times when he had to help her with nearly all her
personal care, but that is not so now, as she can shower and dress alone,
except that she loses her balance and he has to be nearby, particularly when
she is in the shower. There were times when he has fed his wife, at one
stage using a syringe and at others a teaspoon as she could not open her
mouth. Since November 1999, she has not driven a car and he drives her to
medical and similar appointments - for example it takes a good hour each
way from their home to the Cabrini Hospital for monthly sessions with Dr
Lavoipierre. There are regular visits to her general practitioner in Moonee
Ponds. Over the past near nine years there have been very many other
medical appointments to which he has driven her, as well as drives to
pharmacies for her medication.
133.
He now does the vacuuming, which he says takes about an hour, two
to three times a week as he takes it easy, having a lot of time to do it. It is not
suggested that it could be done in less than one hour a week, and I am
satisfied that Mr Paterno would not have dreamt of doing it, whether in
retirement or not, but for his wife’s condition since the surgery. He helps with
the washing and hangs out washing loads. He does the household shopping,
sometimes taking his wife with him, but on the rare occasions he does that,
she needs to use the trolley for support and she could certainly not go alone.
She likes to do the cooking herself, but he says he needs to be in the vicinity
at times she is sometimes unsteady on her feet and could drop hot food or
burn herself on the stove reaching for support.
134.
One of the frequent aspects of his personal assistance for her more
recently, and clearly a distressing one for both of them, is that as a result of
her severe constipation, she takes laxatives which lead to incidents, he says
two to three times a week, when she soils her bed in her sleep under the
influence of the painkillers and sleeping tablets. When this occurs, he assists
her to the bathroom, cleans up and changes the bed linen, washes and
hangs those sheets out, and assists her to wake up and get back to bed.
135.
Mr Paterno was aged 52 in 1999 when he bought out his partner's
half of the Tivoli Reception Centre. He had hoped that one of his sons would
eventually take over the business. Asked whether he would have sold it, he
agreed he would have, had he received a high enough offer, but that he
would probably have bought some other business. On hearing Mr Paterno's
history of running different businesses, including a wine store and a deli from
about 1977 or 1978, I am satisfied that he was unlikely to sell out of all
business interests entirely and retire by 1999 or 2000. In particular, I am
satisfied that with his southern Italian background he would not have spent
time sharing household work such as vacuuming or shopping, as opposed to
the household tasks he used to do which were those from which his wife or
children required protection, such as changing light bulbs and taking out the
garbage in the dark. That is not to say that he was not likely to be supportive
to his wife had she not been injured, but I am satisfied that he comes from a
background where to do those household chores would simply not have
occurred to him had she been able to continue to run the house as she had in
the past.
136.
Clearly the need for different types of assistance has varied over the
years, depending upon Mrs Paterno’s stage of treatment, and condition. I am
satisfied that the amount claimed of 11 hours per week is a modest claim in
light of the hours I am satisfied Mr Paterno has in fact provided attendant
care services to his wife. I assess damages on this basis of 11 hours per
week at $25 per hour for 462 weeks, a total of $127,050.
Capitalisation of future losses
137.
The plaintiff relies on calculations supplied by Mr Hugh Sarjeant of
Cumpston Sarjeant Pty Ltd, consulting actuaries, as to an appropriate
multiplier to apply to any ongoing expenses which I might find at present
value are likely to be incurred for the rest of the plaintiff's life. These figures
are higher than a corresponding one for a woman of the plaintiff's age as
published in tables previously prepared by Mr Sarjeant's partner in his
actuarial firm, Mr Richard Cumpston. The defendant therefore required Mr
Sarjeant to be called to be cross-examined on this issue.
138.
The first reason for the difference is that the published life tables
were based on 2003 life expectancy statistics and the 2005 statistics show a
longer life expectancy for the plaintiff of 1.26 years. Of greater influence on
the difference is that a different approach has been taken in the methodology
of calculation. in that previously the approach was to allow year-by-year for
the mortality that would apply, whereas the current figures produced by Mr
Sarjeant rely on the published life expectancy figures. For a woman of Mrs
Paterno's age, that is now 28.22 years. Mr Sarjeant said the reason for the
change in methodology, which he has adopted in conjunction with Mr
Cumpston, is first that it is the methodology they have been using in Courts in
New South Wales and because they have found that courts and lawyers are
more comfortable with the approach of working on a life expectancy, rather
than in annually revised rates of mortality. In other words, it is simpler to
understand.
139.
If there is to be a definitive decision on which of these methodologies
is more appropriate, it should be made on more extensive evidence and
submissions as to the differences between the methods than has been
produced in the present case. In this case, I take the view that such
multipliers are only intended to be of assistance, and not a rigidly applied
formula, to enable calculation of the current capitalised value of an ongoing
future loss, but recognising that there usually will be many uncertainties
about those future losses and approximation is the best that can be applied.
140.
Mr Sarjeant, during his oral evidence, calculated a figure using 2005
life expectancy statistics, to update the multiplier using the earlier
methodology. The recalculated figure was 766 to equate with his 800 figure
on the changed methodology. He agreed that the figure decreases by roughly
ten each year, so one can make an approximation using that to allow for later
delivery of this judgment than the time of the calculations or the plaintiff’s
birth date.
141.
I have only Mr Cumpston's earlier figure for the capitalisation of a
present weekly loss, discounted allowing for 5% interest, and not the
equivalents for a monthly loss or less frequent one. I propose to use those of
Mr Sarjeant discounted proportionately. I note that six months have passed
since Mr Sarjeant's starting date so that the plaintiff is closer to age 54.
Taking all of this into account, I have decided to use a figure between the two
proffered methodologies and taking into account that some more of the
plaintiff’s 54th year has past since either calculation was made. In my view, a
multiplier in respect of ongoing weekly losses that is appropriate in this case
is 780. I shall use a multiplier of 180 for ongoing monthly losses and 3.47 for
five- yearly expenses.
Future expenses
142.
I am satisfied that the plaintiff is likely to need ongoing psychiatric
treatment approximately monthly for the foreseeable future, whether that is
delivered by Dr Lavoipierre or another consulting psychiatrist. I consider the
figure claimed, as estimated by Dr Epstein in December 2005 of $250 per
monthly visit, as appropriate. Capitalised using the multiplier of 180, the total
for future psychiatric treatment is $45,000. There is nothing to indicate that
Mrs Paterno was at risk of needing psychiatric treatment before her injuries.
As to prospects of needing less in future, I am satisfied that there is only
moderate chance of her need for such treatment for the rest of her life being
substantially reduced. I therefore reduce this figure by 15 % for vicissitudes,
leading to $38,250 on this item.
143.
Future medical treatment, is claimed on the basis of continuation of
the present regime and is claimed at a total of $371.19 per week. That
includes an allowance for two admissions per year to hospital at $6000 per
admission. As far as I am aware, this is only likely to be for bowel and
intestinal problems and I am not convinced that the evidence supports them
at such frequency, especially in light of the recent report of Professor Gibson
as to some contemplated surgery. Doing the best I can I would allow an
amount equivalent to an average of one such admission a year, recognising
that it is more likely to be higher in the next couple of years. The claim
includes $100 monthly for each of pathology testing and additional Xrays/ultrasounds, the former of which seems to relate largely to the bowel
and intestinal problems. Ongoing regular attendance at a GP, in my view is
likely to continue indefinitely fortnightly. Visits to a gastroenterologist
fortnightly and colorectal specialist monthly are more uncertain, but I have
decided that on present prospects they are likely, but that part of the total
warrants the fullest reduction for vicissitudes as it would hopefully be very
significantly reduced if not almost eliminated if her bowel condition could be
stabilized without further aggravation by opiods..
144.
The claim for future medical expenses also includes an allowance for
pain management specialist visits at $83.20 per month (to Drs Stanley or
Hogg). I do not understand that to be a likely indefinite expense in the future.
On the evidence, she is not currently seeing a pain management specialist
because her attendance at the Royal Melbourne Pain Management Clinic
and Dr Hogg was put on hold awaiting resolution of her gastrointestinal
problems, and Dr Lavoipierre's impression is that it is not intended to be
resumed.
145.
Instead of this allowance, I would allow on the basis of estimates
provided by the defendant for the expected cost of a further attempt to
rehabilitate her through a pain management program. The estimate for
inpatient detoxification from morphine, using Dr McDonough's estimates, for
this to be done in a private hospital and adding the hospital and medical
consultation fees but excluding his allowance for physiotherapy and
pharmacy because such would replace her ongoing needs for that period,
allowed for elsewhere, would be $5,500 for that stage. The cost of her
undertaking the Barbara Walker Centre Program is uncertain, but as best I
understand Dr Trinca’s evidence it would be about $8,000. I allow that figure
for this purpose, without reduction for vicissitudes.
146.
For these reasons, I consider it appropriate to allow the plaintiff the
following for future medical treatment GP visits - average weekly figure $27.50
Gastroenterologist visits - average fortnightly - average weekly figure $28.37
Colorectal specialist visits monthly - average weekly figure $13.75
Pathology testing - average weekly figure $25.00
X-rays/ultrasounds - average weekly figure $25.00
Hospital stays – allow 115 per week
These items total $234.62 per week, and applying the multiplier capitalise at
$183,000. I reduce them by 30% for vicissitudes, creating a total of $128,100.
147.
In addition, I would allow $5,500 for the cost of undertaking inpatient
detoxification for morphine in the relatively near future, namely, next 12 to 24
months, and $8,000 for a pain management program.
148.
In relation to future pharmacy expenses, the claim is based on the
current regime and totals $1,109.69 per month. Dr Trinca was asked to
comment on that medication regime. She states that because she is not
certain about the severity or state of Mrs Paterno's bowel dysfunction and the
likelihood of some bowel recovery if opioids were withdrawn, she cannot
comment on the cost of either ongoing treatment or medication in that regard.
She notes that Lasix and therefore slow K would relate to oedema, but she is
not aware whether that is secondary to high opioid use and therefore likely to
reduce as opioids are withdrawn, or whether there is underlying cardiac or
renal condition requiring their ongoing use. She also is of the view that even if
Mrs Paterno were not accepted into or was not ultimately assisted by the
Barbara Walker Pain Management Program or similar, it might be that her
ongoing morphine regime would be altered. That is because some medical
specialists would insist that the injections were inappropriate and other
methods of administration should be contemplated such as spinal
administration. or would insist on at least partial weaning of opioid use.
149.
There is much about the current medication regime which I simply
cannot assess as to its likely future need, as I have too little information about
its current basis for use. Not only are there the items listed by Dr Trinca, I
have insufficient information about the Hypnovel injections as I do not
understand the paragraph about them in the recent report of Dr Lavoipierre.
The plaintiff bears the burden of proof on this as well as all other items
claimed, but I am in the position that I am satisfied that she is likely to need
very substantial ongoing pharmaceutical items, but those may well exclude at
least the self-injected morphine items in the future, and the need for
medications relating to her bowel problems is also unclear. Doing the best I
can, I halve the cost of the Picolax and Fleet Enema (as they are used
alternately) and exclude morphine sulphate injection and syringes as a likely
eventuality. I recognise that alternate medication may be adopted which also
may replace some of the other medication claimed. I use an estimate of $950
per month for pharmacy expenses in the future, which capitalises into a sum
of $171,000. In my opinion, however, this figure is susceptible to greater
reduction for the vicissitudes of her potentially being assisted through pain
management strategies to reduce the extent of this ongoing regime, and I
would deduct 30% from that sum for those vicissitudes and allow $119,700.
150.
I am satisfied that a concerted program of physiotherapy and speech
therapy is appropriate to be undertaken for Mrs Paterno. Some occupational
therapy is also probably appropriate. However, the extent of the claims made
for these, in my opinion exceed what 0I consider to be reasonably likely to be
necessary to be incurred for Mrs Paterno because, in my view, intensive
assistance over, say, a 12 month period as proposed, with some review and
refreshing of techniques on an ongoing basis seems to me adequate. For
example, a gym program would not be remedial indefinitely, and the need for
some, although I accept not all, of the proposed initial programs would be
addressed through a pain management program for which I have allowed the
costs. I am not convinced that a vitamiser or its equivalent is not a piece of
equipment which would not have been purchased for the Paterno household
in any event. I do not agree with the defendant’s submission that a
sophisticated pain management program would embrace enough of the same
purposes and approaches of the separate therapies claimed to render them
unnecessary, but I am satisfied that there is considerable duplication of
purpose in the separate approaches, albeit not exact duplication of items.
151.
Taking a broad-brush approach to these therapies, and the
recommendations for them, I would allow the following:
o
o
o
o
o
o
o
o
Programs in first 12 months of speech pathology, a block of
occupational therapy counselling, and a 26 week community
based physiotherapy program -$32,000
Purchase of recommended mattress - $2,875
Assorted equipment for programs - $300
Annual review by speech pathologist and physiotherapist $1000 per year – capitalised and reduced by 10% for
vicissitudes - $13,500
Attendant carer time to drive and accompany plaintiff on
average of 6 hours per week for 26 weeks – at $31.50 p/h $4,914
Home help assistance of 2 hours per week at $22.50 per
hour ($45 per week) - capitalised and reduced by 10 % for
vicissitudes – total: $31,590
Attendant care other than for attending rehabilitation services
– 5 hours per week at $32 per week – capitalised and
reduced by 20% for vicissitudes - $19, 968
Taxis to doctors - $25 per trip at average 2 times per month –
capitalized and reduced for vicissitudes by 15% - $7,650
1. The defendant urges that I deduct an allowance for savings in the future for
what the plaintiff’s ongoing alternative dental expenses would have been.
However, none of the amounts I have allowed for the future relate to her
ongoing dental care, and I am not satisfied that she will not still need to pay
for ongoing dental care, albeit of a different oral condition. In addition I have
disallowed claims for mouth- washes and the like for her ongoing oral
hygene. I am not satisfied that there are likely to be net savings in the future.
2. For the above reasons I find for the plaintiff in negligence against the
defendant, and assess her damages at $1,055,064.
SUMMARY OF DAMAGES
General Damages $350,000.00
Medical and like expenses to date $182,463.57
Less savings in alternative dental treatment $ 16,800.00
N
e
t
$
1
6
5
,
6
6
4
.
0
0
Husband’s Carer Services $127,050.00
Future Expenses (each after reduction for vicissitudes)
Psychiatric care $ 38,250.00
Medical and Hospital expenses $128,100.00
Inpatient Detoxification from morphine
and Pain Management program $ 13,500.00
Future Pharmaceutical expenses $119,700.00
Future Physiotherapy, Speech and Occupational
Therapy expenses $112,800.00
___________
Total Future
Expenses
$412,350.00
TOTAL DAMAGES
$1,055,064.00