| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : COPPOLINA -v- KIERATH [2003] WADC 141 CORAM : GROVES DCJ HEARD : 17-19 MARCH 2003 DELIVERED : 20 JUNE 2003 FILE NO/S : CIV 141 of 2002 BETWEEN : MARIA COPPOLINA Plaintiff
AND
TONY KIERATH
Defendant
Catchwords: Negligence - Breach of duty - Causation - Medical practitioner - Duty to warn patient of material risk - A general warning only given - Surgery performed with due care - Bleeding leading to subcapusular haemorrhage necessitating removal of spleen - Whether more specific warning should have been given - Whether patient would have undergone procedure if warned
Legislation: Nil
Result: Action dismissed
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Representation:
Counsel:
Plaintiff : Mr P R Eaton
Defendant : Mr P D Quinlan
Solicitors:
Plaintiff : Bowen Buchbinder Vilensky
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
F v R (1983) 33 SASR 189
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Smith v Barking, Havering and Brentwood Health Authority (1994) 5 Med LR 285
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Case(s) also cited:
Nil
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1 GROVES DCJ: Maria (Mary) Coppolina underwent weight reduction surgery on 30 December 1996 performed by Dr Tony Kierath. The surgery involved the placement of a gastric band around the upper part of the stomach thereby creating a small stomach above the band. This procedure is used in cases of chronic obesity. The surgery was elective. The operation was carried out by way of open surgery. During the course of that surgery the defendant while dissecting around the upper stomach cut blood vessels to the spleen causing bleeding leading to subcapsular haemorrhage. Rather than attempting to staunch the bleeding by pursuing those vessels which tended to retract into the hilum of the spleen, the defendant carried out a splenectomy. There is no question that the defendant conducted the operation with the required skill and care and that in the circumstances the removal of the spleen was appropriate.
2 Before the operation Dr Kierath informed the plaintiff in general terms of some risks associated with the procedure. He did not inform her in particular that there may have been some risk in the surgery that she might lose her spleen. The plaintiff claims that had she been warned of the risk of losing her spleen during the course of surgery she would not have undertaken the surgery. 3 The plaintiff alleges that the defendant owed her a duty to warn her of the material risks inherent in the surgery and that he breached that duty by failing to explicitly refer to the risk of splenic injury leading to the need to undertake a splenectomy. The defendant denies that he was in breach of his duty to warn the patient of material risks inherent in the gastric banding procedure. It is not disputed that the defendant did not specifically refer to the spleen or splenectomy in the advice he provided to the plaintiff.
The test to be applied 4 The test to be applied in determining whether there was a breach of duty was formulated in Rogers v Whitaker (1992) 175 CLR 479 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at 490: "The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular
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patient, if warned of the risk, would be likely to attach significance to it." 5 This case falls within the first of the two alternative tests of materiality. There was no evidence to suggest that at the time of the pre-operation consultation in 1996 the defendant was aware or should reasonably have been aware that this particular patient would be likely to attach significance to a risk of splenectomy.
The plaintiff's history 6 The plaintiff was born on 20 May 1957. In her childhood years she contracted measles and chickenpox. At age five years her tonsils were removed. At 12 years of age she was diagnosed with gall bladder problems and gallstones. She entered Princess Margaret Hospital and was operated on by way of open surgery for removal of her gall bladder, a procedure known medically as a cholecystectomy. About one week after that operation she had a second operation, again by way of incision, to remove further gallstones. She was left with scarring from approximately the sternum down the mid line to a point above the naval and then across to the right under the rib cage. 7 The plaintiff married when she was 19 years. Physically she was 5 foot 6 inches tall and her weight then was 65 kg. She had four children, each of whom were delivered by normal birth. The only untoward incident was that after delivery of her first child she haemorrhaged and was taken to theatre. After the birth of her fourth child and when she was 28 years she had her tubes banded. Operatively, this involved two small incisions and she was in hospital for two days and had no complications. 8 She thereafter had difficulty managing her body weight. She tried all manner of diets to reduce her weight but all to no avail. In about 1994 she enquired of her general practitioner, Dr Wong, about gastric stapling. Dr Wong sent her to see a specialist and from what that person told her she formed the view that the procedure "sounded frightening" and was a big major operation. She did not pursue that course further. She continued to diet on and off but still to no avail. 9 In late 1996 she either read about or saw on television a new weight reduction procedure described as "gastric banding". She made some enquiries and obtained names of doctors who undertook this procedure. One name she was given was that of the defendant. On 12 November
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1996 she attended on Dr Wong. He knew nothing about the procedure but gave her a letter of referral to the defendant in the following terms: "Mary had a Cholecystectomy at 16. She has a large scar which she still gets pains b.c. deep in. (sic). She had been told she had adhesions. Secondly she was told you do silicon bands? Round the stomach for weight reduction. Could you please see and advise." 10 The purpose for making mention of the large scar was its unsightliness and she was hopeful that something might be able to be done about them.
Plaintiff's consultation with Dr Kierath 11 An appointment was made and the plaintiff attended on Dr Kierath on Thursday 28 November 1996. Her weight then was 111 kg. To the extent that she could recall this consultation she said that she asked about the gastric banding procedure, what it was, how it was done, whether it would help with weight reduction and she enquired about risks. She recalled mention of blood clotting occurring after surgery and being informed that was treatable. She was also told there was a risk of piercing of the stomach and being told that was rare and had only happened in one case overseas. Cross-examined she could not recall if she had been told that the procedure was a life changing event, that it was a major procedure or being told that people had died from the operation in overseas countries. She was given a booklet entitled "The Lap-Band" to take with her to read. A decision as to whether or not to undertake this procedure was not sought nor made at this consultation. 12 Dr Kierath qualified as a medical practitioner in 1981. He is a general surgeon who has developed a practice in obesity surgery. Early in 1996 he received training under the guidance of Professor Paul O'Brien of the Alfred Hospital, Melbourne, in the procedure of gastric banding. The procedure had been introduced into Australia by Professor O'Brien in about 1992. Up to the time when he saw the plaintiff he had undertaken less than fifty gastric banding procedures in Perth. The information booklet "The Lap-Band" had been written by Professor O'Brien.
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13 Dr Kierath had no independent recollection of what he said to the plaintiff in the course of the consultation. He did however record the history given to him by the plaintiff on a Patient Information Sheet (Exhibit 13). The history recorded was consistent with the plaintiff's evidence. He also made a diagram noting the prior operative scarring and a diagram indicating placement of the band in relation to the stomach. As he had no specific recollection of his conversation with the plaintiff the defendant gave evidence of what was then and still is his invariable practise so far as advising patients about this particular procedure. It was his invariable practise to discuss the procedure with the patient, to demonstrate by use of a lap-band how it operates, to inform patients that it is a life changing event and must not be undertaken lightly and to warn of risks associated with the procedure. Those risks included death (there had not been any deaths in Australia but there had been overseas in Greece and Mexico apparently as a result of unrecognised perforations of the stomach), bleeding which is spoken of in the widest sense because the opportunity for bleeding to occur can be from many different sites, the risk of infection in the lung, the wound or around the band and heart attacks/strokes, although these had not been encountered anywhere so far as the defendant was aware.
14 The defendant's evidence as to his invariable practice was substantially consistent with what the plaintiff could recall being told and I have no reason not to accept that on this occasion what the defendant told the plaintiff did not accord with his invariable practice. He gave her the information booklet to take with her to read. It is not his practice to have patients make a decision straight away but rather he requires that they go away and read the booklet so as to be more informed and have time to reflect upon all the information before making a decision whether to proceed or not. The defendant acknowledged that in his consultation with the plaintiff there would not have been mention of the risk of a splenectomy. 15 For most patients the gastric band can be placed laparoscopically. Being aware of the plaintiff's prior operations and noting the scarring the defendant formed the view that open surgery was appropriate for revision of the existing scarring and for the gastric band to be inserted at the same time. He informed the plaintiff of that at the consultation.
The information booklet 16 The information booklet provided to the plaintiff spells out the problems of morbid obesity and describes the procedure of gastric
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banding as being an effective solution in achieving weight loss. Under the heading "Now What About the Bad News!" the following is stated: "It can't all be good news. There must be dangers, there must be problems. What is the worst that can happen? Well, there are many negative aspects to operations for obesity in general and to the adjustable gastric band in particular, and it is essential that you are aware of these. Any gastric operation for obesity is major surgery and carries with it the risk that would go with any complex operation. People have died from having operations for morbid obesity – it happens rarely but we can never take away the risk completely. … Deaths associated with obesity surgery occur mostly because of heart attacks after the operation, clots passing to the lungs or infection due to breakdown of some part of the stomach wall. There are reasons why we might expect the Lap-Band to have a lower risk of death than the earlier operations, but still death might occur in 1-2 of every 1,000 who have the procedure. There is probably of (sic) about one chance in ten that complications may occur at the time of the operation. Some of these are of minor significance and do not slow your recovery significantly. Others may be of major significance and can be associated with a much longer hospital stay and a much longer recovery period. The sort of problems that are relatively common are infections which may occur in the lung, in the stomach in the area of the band, or at the sites where the ports are placed through the skin. Clots can form in the legs and some of these may pass to the lung giving rise to a potentially dangerous situation. The stomach can be damaged as the band is placed and perforation of the stomach can follow. …we take a range of measures to reduce the likelihood of problems occurring but, in spite of our best efforts, we are unable to prevent them completely. . . . It is most important therefore that you see the decision to go ahead with operation as a most serious one and it can only be justified if the problems associated with your obesity clearly exceed the problems that may be associated with the operation.
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It is not a decision to be taken likely; it is not like going on another diet – you can always give up on a diet." 17 The information booklet then states under the heading "What Happens at Operation?" inter alia: "Occasionally the procedure can't be performed laparoscopically. This may be because there has been previous surgery in the area and there are too many adhesions. Sometimes although we start to do the procedure laparoscopically, something happens which make sit more appropriate to change over to an open operation. This may occur if a significant amount of bleeding happens or if there are difficulties in passing the band around the stomach. You won't know that we have had to do this until after the completion of the operation and you have to go into the operation recognising that this may happen. However, we expect that it should occur with less than one in twenty operations." 18 The information booklet then goes on to spell out the patient's responsibilities for the success of the operation and appropriate steps regarding the intake of fluid and solid food post operatively.
Post consultation and pre-operation 19 The plaintiff read the information booklet. On Monday 2 December 1996 the plaintiff telephoned the defendant's rooms and spoke with a secretary who noted on the patient information sheet the following: "2/12/96 Mary rang forgot to ask you a question re: scar. Can you please phone her. Her op is booked for 30/12/96 confirmed by her." 20 Neither the plaintiff nor the defendant could recall having spoken with the other in the intervening period before the operation. However, the decision having been conveyed by the plaintiff to proceed she was sent a Glengarry Hospital consent form which she signed on 22 December 1996. In preparation for the procedure she also had blood tests and an ECG.
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21 Following the consultation the defendant reported to the referring doctor, Dr Wong, by letter of 28 November 1996 wherein after reference to the procedure it was stated:
"Mary's other problem is her two laparotomies that she had with her gallstones and it may well preclude it being done laparoscopically as there is likely to be some adhesions on the upper abdomen. My feeling is that she's probably best served with an open procedure and tidy her wound at the same time. I've given Mary all the information about this and she'll go away and have a think about it and will let me know how she wants to pursue it further."
The operation 22 The operation was performed at the Glengarry Hospital on 30 December 1996. The plaintiff was given a general anaesthetic. In the course of the operation old scarring was excised and there were, as the defendant expected, adhesions within the upper abdomen. His evidence was: "The adhesions were very gently dissected. However, when coming around to the upper surface of the stomach – and you must remember that in a patient of 110 kilograms that is quite a distance away – I divided one of the small veins that go to the middle of the spleen or the portal of the spleen, … into the hilum. This then began to bleed. The bleeding was venous and it wasn't arterial; that is, it's not a pulsatile flow; it's just a continuous flow. What happens under those circumstances with venous bleeding is that rather than seeing squirting blood you just see a rising level and it's a rising level of blue blood which is a little bit more difficult to control, in fact, significantly more difficult to control, than arterial bleeding. So here you've got a patient who is a very large body size with a spleen that's a long way away in a confined space so I have to make a decision at that time: do I try and pursue this vessel which not only has contracted but retracted into the spleen, which is not a simple undertaking, or do you do the safest thing possible for that patient, which is to remove their spleen there and then? … My decision at that point was just to take the spleen out."
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23 The spleen was removed. The defendant then inserted the lap-band around the upper part of the stomach and adjusted it to the appropriate tightness.
24 The plaintiff was returned to the ward where the defendant later visited her. The plaintiff was then coming out of the effects of the anaesthetic and was drowsy. The defendant informed her of the need for removal of the spleen. The plaintiff said she did not really comprehend what she was told on that occasion but on the next day when the defendant visited he explained to her the course of the operation and the circumstances requiring removal of the spleen. 25 Post-operatively the defendant gave instructions to the nursing staff, inter alia, that the plaintiff be vaccinated against Pneumococcus, Haemophilus Influenzae and Meningococcus. The reason for these three vaccinations was explained as: "Because after a spleen has been removed there is a small risk that infection with these organisms, which under normal circumstances you could overcome easier, has a more fulminant course once your spleen has been removed and therefore to protect from that fulminant-type infection the immunisations are administered." 26 It was the plaintiff's evidence that she enquired of the defendant as to what the spleen did, to which his response was that it combated infections in the body. She said that she was told that she had been given three injections they being for "menigococal, HIB (sic HIV) and pneumonia". Asked if the defendant suggested anything about what might happen in the future it was her evidence: "I'd have to keep up the injections and have hepatitus B injections, my doctor would have to give them to me, a course of three." 27 The plaintiff was not sure if the defendant visited her again in hospital. It was the defendant's evidence that he did visit her each day whilst she remained there. On 6 January 1997 the plaintiff was discharged from Glengarry Hospital. 28 On 23 January 1996 the plaintiff attended at the defendant's rooms. She had lost 8 kg in weight and Dr Kierath noted that she had not experienced any interference in her activities or with her appetite. Cross-examined the plaintiff said that on this occasion she asked the
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doctor again why he had had to remove her spleen and his explanation was that it was because of bleeding. The defendant had no recollection of this discussion and there is no reference to it in his notes of that attendance. No adjustment was made to the gastric band on that consultation. 29 On the same date the defendant reported to the plaintiff's general practitioner as follows: "I saw Mrs Coppolina today who had her band put in as an open operation because of her previous upper abdominal scarring. She developed a small tear in one of the splenic vessels and that necessitated a splenectomy. We've given her a course of Pneuococeal Haemophilus and Menigococeal immunisation while in hospital. Anyhow, things are going along very well at the moment and I'll just see her again in three weeks." 30 On 13 February 1997 the plaintiff again attended on the defendant. Her weight had not reduced further. One mil of fluid was inserted into the band the effect being to restrict further the band around the upper stomach thereby reducing the intake of food. The defendant reported to the plaintiff's general practitioner: "I saw Mary today and as her weight's the same as it was a month ago, I've put one cm of fluid into the band. I'll see her again in a month." 31 An appointment was made for the plaintiff to attend again on 13 March 1997 but she did not attend. The patient record indicates that a further appointment may have been made for 1 May 1997. The plaintiff did not attend on that date. Thus her last attendance on the defendant was on 13 February 1997.
The plaintiff's condition post operatively 32 It was the plaintiff's evidence that within a couple of months after her operation she became quite disturbed about the fact that she had lost her spleen. She developed the belief and feared that she was now more susceptible to illness, disease and germs. She saw Dr Wong to have hepatitis injections. She became paranoid about diseases and infections and started visualising what might happen to her and how her life had changed. She got frantic at home and walked around with a bottle of Pine-o-Kleen or bleach continually wiping everywhere. She became
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obsessed about cleanliness in the house and went into a state of belief that she was vulnerable to contracting illness or disease from visitors. This necessitated her to clean the toilet after any visitor had used it. Whereas she might have showered one or two times a day previously she now showered three or four times a day. Going outside the house caused her to have fear that she might contract some bug or disease. She became a recluse in the home and avoided shopping or social activities. 33 In August 1998 she commenced going to Weightwatchers to try and reduce weight. She was then 111 kg. She persisted with the Weightwatchers' programme. She was still obsessed with her perceived susceptibility to illness and this continued into 1999. This led to matrimonial disharmony and in about February/March of that year the plaintiff's husband left the home. The plaintiff's children were angry with her and her obsession to clean everything and they used to call her by a derogatory name. 34 In the year 2000 the plaintiff realised that she had to do something to overcome her paranoia. She joined a group called "PMH Woman of the West" which assists in fundraising for Princess Margaret Hospital. She said that she had wanted to join that group back in 1996/1997 but was put off from doing so because of her susceptibility to illness. Her husband returned to live with her in the year 2000. 35 On 20 February and 24 March 2001 on referral from her general practitioner she saw Dr Peter McCarthy, a consultant psychiatrist. In 2001 the gastric band was removed operatively by Professor House. She persisted with Weightwatchers and achieved a gradual reduction of her weight and at trial was back to what she described as a normal weight of 75 kg. Her conduct at home is now more restrained and she no longer goes about the house carrying a bottle of bleach and incessantly cleaning. She is still concerned about cleanliness when it comes to food. Even so she had in 1999 worked in a lunch bar for seven to eight months and had no difficulty there working with food. 36 She does not attribute any weight reduction to the gastric band. She said that it did not work. The reality is however that as she did not continue to visit Dr Kierath for adjustment to be made to reduce intake of food it is not surprising that the lap-band did not achieve her desired outcome. Nor did she go to any other doctor for management of the gastric band. She claimed that the defendant told her that removal of her spleen was necessary because it was diseased. She telephoned pathology and ascertained there was nothing wrong with her spleen.
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Medical evidence
37 David Oliver Watson is a consultant physician. He conducts a large in-patient practice at St John of God Hospital Subiaco, consults on referrals from others, engages in medical legal work both in practice as well as within his role as a member of the Council of Medical Defence Association and also engages in a teaching role in respect of his work within Medical Defence and in under-graduate and post-graduate teaching at the hospital. His report, based on materials provided to him, was sought by the plaintiff's solicitors. He did not meet with the plaintiff. Both in his report (Exhibit 5) and in his evidence he stated that the choice of open surgery as opposed to laparoscopy was entirely appropriate in the circumstances of the plaintiff. He was in agreement also that once splenic injury including damage to vessels, subcapsular haemorrhage, intra splenic haemorrhage or laceration had occurred the appropriate procedure was to gain control of the haemorrhage by undertaking splenectomy. That is, Dr Kierath's response in the circumstances was entirely appropriate. 38 It was Mr Watson's opinion also that the risk of a splenectomy for the plaintiff in this procedure was foreseeable. The basis for him holding to this view was stated in his report as follows: "Splenic injury including damage to vessels, subcapsular haemorrhage, intra splenic haemorrhage or laceration are all recognised consequences of a gastric banding procedure particularly if previous surgery in the upper abdomen had created adhesions involving either the stomach or spleen. The spleen sits high up in the abdomen on the left side behind the stomach and splenic flexure of the large bowel with the tail of pancreas adjacent to the splenic hilum and the left adrenal gland and upper pole of the left kidney adjacent to and very nearby the lower part of the spleen. There is quite a significant arterial supply to the spleen and venous drainage from the spleen forms part of the portal venous system draining into the liver. Because there is a high propensity for the portal venous system draining from the spleen to form collateral circulation with the systemic venous system in the region of the gastro-oesophageal junction, the development of significant, abnormal and quite readily damaged multiple veins around the upper part of the stomach (the tantrum) is a regular feature of certain conditions such as gastro-splenic adhesions following upper abdominal surgery and even more significantly, portal hypertension.
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These vascular anastomoses are notorious for ready bleeding and difficulty of control. … … In dissecting adhesion in the upper abdomen as part of mobilising the gastric antrum to perform the procedure, Dr Kierath injured vessels in adhesions between the stomach and spleen. This was a foreseeable complication of the surgery and the presence of adhesions. In my view, there was no evidence that Dr Kierath produced this injury as a result of poor surgical technique." 39 Having said that, however, Mr Watson acknowledged in cross-examination that the chance of damage to the spleen in a gastric banding procedure was very uncommon. He was not himself aware of any instance of damage to the spleen occurring as a complication of the gastric banding procedure. He agreed that the risk of damage to the spleen resulting in a splenectomy from gastric banding surgery would be less than 1 in 1000 and that such risk was likely to be less than the risk of death associated with a gastric banding procedure. He believed that the risk of damage to the spleen would be comparable in its probability of occurring as damage to the stomach itself. That is there is nothing to suggest that the risk of damage to the spleen was any greater than the risk of perforating the stomach. 40 Harry Barnett Frydenberg practices in bariatric surgery at the Epworth Medical Centre in Richmond Victoria. He was called to give evidence on behalf of the defendant. He and Professor Paul O'Brien were the first Australian surgeons to undertake training in Belgium in the lap band procedure. He has been undertaking lap band surgery since 1993. As at the time of the plaintiff's surgery in December 1996 he had not heard of any instance where a splenectomy had resulted from the lap band procedure. He was aware however that it had been associated with gastric stapling procedures. To the date of trial he had never heard of a case, save this one, where a splenectomy was necessary in the course of the lap-band procedure and it was his opinion (report Exhibit 14) that it was "a rare complication of this operative procedure …". 41 He agreed that given the situation which the defendant encountered it was entirely appropriate to perform a splenectomy. 42 In large part Mr Frydenberg's evidence and cross-examination was directed towards pre-operative informed consent and whether or not the
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plaintiff should have been informed of all possible risk factors and complications in this operative procedure. His evidence on this issue will be dealt with later in these reasons. 43 Miles Hume Beaman is a sessional infectious diseases physician with the Department of Infectious Diseases at the Fremantle Hospital and is a clinical microbiologist and infections diseases physician with Western Diagnostic Pathology. He was called to give evidence on behalf of the defendant. It was his evidence that "… there is no compelling evidence that patients who have had splenectomies are at increased risk of infection following elective surgery or dental work" (report Exhibit 6). 44 Although medical opinion is divided it is generally recommended that where a splenectomy is indicated then the earlier vaccines are administered the better. In this case the vaccines were administered post-operatively and this was appropriate in the circumstances. In his research it was apparent that there were widely varying rates of infection reported in patients who have had splenectomy. His report stated: "In general, the risk is greatest in young children and in the first two years after splenectomy. Rates are lower in adults and are also lower if the indication for splenectomy is not malignancy (and is lowest for the post-traumatic indication). Therefore, in this patient the risks are very small and she has been through the period of greatest actuarial risk. The ongoing risk, therefore, is even tinier than the original risk. Aside from the infection risk, long term sequelae of splenectomy include rare complications such as thrombotic events due to thrombrocyphaemia. The precise risk for this patient at this stage to develop post-splenectomy complications is difficult to specify because of the widely varying rates in the literature which reflect different population groups being studied. Nevertheless, from the most reliable study (Styrt) this rate would be no more than 1.2/100 person years. As discussed above, most of this risk would be concentrated in the first two years. Now that she is 7 years post-surgery, the risk would be significantly less than that." 45 Furthermore it was his evidence that for persons having had a splenectomy using vaccines their risk of suffering ill effects of one of the identified infectious diseases was effectively halved. Thus the rate would be about 0.6 per 100 years or 1.2 per 200 person years. Whereas the risk
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of disease being very small to start off with the difference is merely a statistical issue rather than a practical one. However, none of the vaccines provide 100 per cent or lifelong protection. The general consensus would suggest revaccination around five years after the first vaccine but again there is a diversity of the medical opinion on that. In amplifying his evidence as to the risks being small but the consequences of the known diseases being disastrous he stated, specifically talking about meningococcal septicaemia that the majority of people who have had that disease have not in any event had splenectomies. Nor had they had the vaccination before contracting the disease. That is so because the meningococcal disease per se is a very rare condition and the benefit to the community of vaccinating everybody would not be justified. Conversely, however, those who have had a splenectomy will have had the vaccination and therefore their risk of contracting the disease is statistically much less. Splenectomy is an uncommon operation and invasive disease in people with splenectomies is exceedingly rare.
The spleen – its function and consequences of its removal 46 Mr Watson described the position of the spleen as follows: "The spleen sits high up in the abdomen on the left side behind the stomach and the splenic flexure of the large bowel with the tail of the pancreas adjacent to the splenic hilum and the left adrenal gland and upper pole of the left kidney adjacent to and very nearby the lower part of the spleen." 47 In contrast the gallbladder, in respect of which the plaintiff had previous operations and had scarring from, is located on the other or right side of the abdomen up underneath the liver. If there were bleeding or bile leak during the course of gallbladder surgery it would be expected that most of it would be confined on the right side of the abdomen. Mr Watson however was not able to say with absolute certainty ".. that adhesions would be confined on the right side of the abdominal cavity, but it is certainly likely that they will be more of a problem on that side." 48 The spleen is a solid organ which is encased in a membrane. The spleen and membrane together are referred to as the capsule of the spleen. Subcapsular haemorrhage is a collection of blood below the capsule of the spleen. The spleen is a very vascular organ and its main function is the destruction of blood cells. The main blood cells destroyed are red blood cells which have a limited life span of about 120 days unlike all other cells in the human body. It is the primary function of the spleen to
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destroy those cells once they reach their use by date. If the spleen is removed this function is quite capable of being performed by other parts of the haemolymphatic system, specifically, the liver. Thus in this context the loss of the spleen has no clinical consequence at all. The only difference between a person with a spleen and a person without a spleen is that on a blood test there will be a minor abnormality of no relevance other than identifying that the patient has probably had a splenoctomy. 49 The spleen also has a surveillance function in protecting the body in relation to certain kinds of bacteria. As explained by Mr Watson: "The organisms that cause most concern are relatively common. Three of them have now vaccines against them and the problem is that the surveillance system that, in some ways, are influenced by the spleen is not subtle enough anymore to recognise these organisms quickly enough in the bloodstream, that is when there is what we call bacteraemia or septicemia, and the consequences are that the organisms are not cleared from the blood nearly as quickly and there is, thereby, the risk of serious and sometimes life threatening septicemic illness where in other circumstances the patients might end up just, say, with pneumonia." 50 With removal of the spleen "patients are known to be susceptible to septicemia and severe and sometimes lethal illness from encapsulated bacteria such as haemophilia influenzae, Neisseria meningitides and streptococcus pneumoniae" (per Mr Watson's report Exhibit 5). 51 It is against the risks associated with those bacteria that the three vaccinations followed removal of the spleen. Those vaccinations are efficacious. They restore the protection against illness from encapsulated bacteria which would otherwise be lost by loss of the spleen. Other bacteria is fought by white blood cells which are not impaired or affected by a splenoctomy. In particular, on Mr Watson's evidence, neither hepatitis B nor HIV are affected either insofar as the chances of getting it or the body responding to it by the loss of the spleen. Furthermore Dr Beaman with whom Mr Watson was in agreement opined that there was no compelling evidence that persons who have had a splenoctomy are at increased risk of infection following elective surgery or dental work. The risk that a person having had a splenectomy might suffer such illness as identified is, in any event, very low. Likewise insofar as Dr Beaman gave a numerical estimate of that risk, as being more likely in the first two years post-surgery and thereafter decreased, Mr Watson concurred.
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Mr Watson's only reservation was that patients needed to make sure that where appropriate the vaccination for the three encapsulated bacteria identified were updated. Other than the small risk of infection requiring the vaccines it was Mr Watson's evidence that there was nothing to distinguish between a person with a spleen and a person without a spleen in terms of the effect it might have on their health.
Informing the plaintiff 52 As indicated earlier it was entirely appropriate that the lap banding procedure in the plaintiff's circumstances was undertaken by way of open surgery. There was previous scarring from her gallbladder operations and in all likelihood there could be expected to be adhesions at least in the area of that scarring. In conjunction with the lap banding procedure the plaintiff also sought revision of the scarring from prior operations. 53 At the first consultation the plaintiff was warned by the defendant of the risk of death, bleeding, infection, heart attack and stroke. The information booklet which was given to her and which on her evidence she read also warned of risks and dangers associated with undertaking the procedure. The defendant did not warn her specifically of any risk that she might lose her spleen. In the same context nor did he warn her specifically of any risk insofar as any other body organs were concerned. On Mr Watson's evidence the risk of losing the spleen was a foreseeable complication of the surgery. 54 Dr Frydenberg acknowledged that the argument as to whether all possible complications should be included in pre-operative advice has always been the subject of contention. He went on to say (report Exhibit 14): "…it is generally felt that certainly all the major complications, both specific to the operative procedure and those generally associated with any operative procedure are mentioned and more particularly when dealing with a situation where previous operations have caused adhesions and alteration of the anatomy, then one may mention that unexpected complications may occur." 55 Insofar as "unexpected complications" Dr Frydenberg explained that: "… not being able to pre-empt what you are going to find and see, one might pay to inform the patient that there may be things
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that I don't know about that I will find and I will have to deal with at the time." 56 Cross-examination of Dr Frydenberg continued: "So some consideration must be given to the site at which the surgery is being undertaken? In relation to what were you referring? In relation to what you decide to tell a patient about the procedure that is about to be undertaken?---Certainly. I don't think one normally goes to specifics about a whole length of a stomach wall and the whole side as to whether you say 'there may be something here' or, 'there may be something there' or, 'there may be something there.' That is particularly specific. You would probably have a more general view in relationship problems you may find. Might you deal for example with the possibility that the procedure might involve a small risk of perforation of the gastric lining?---Yes. That is one of the ones that may lead to subsequent death and therefore certainly involve a certain amount of … And the subsequent death may arise out of the subsequent development of septicemia and the like?--Yes. And it would be fair to warn of the difficulties of encountering bleeding? I think that in actual fact that when one talks about the complications in general relating to lap band surgery one anticipates minor problems with bleeding which you can control, therefore it is not normally mentioned per se in informing patients in relationship to it. . . . And it would also be fair, I'd suggest to you, to make a comment about the possibility of perforation of the spleen or damage to a splenic vessel? Because of the experience, as I mentioned, when we were doing gastric stapling and it was certainly a complication that occurred with gastric stapling, it would be mentioned, and I used to mention it significantly. In relation to laproscopic gastric banding or gastric banding per se and having had a lot of experience in the field but not having
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that complication, it is unlikely to be mentioned as the incidence is particularly low. That's the benchmark, is it, for you, whether or not it's been encountered before?---No. The benchmark is this question that I did mention earlier, that does one explain all the complications including the-I mean, particularly those that don't occur very frequently at all, and you can go into a lot of the different complications if you really need to, but it has been found clinically, I mean, that when you think about it that doesn't seem reasonable in that regard, partly because of a very low incidence occurring of that particular complication… Sure, but you mentioned death, and the outcome of death is a very small percentage, is it not?---Yes, very, very, small percentage in relation to death, yes, but that is certainly a major complication. The injury to the spleen obviously in those circumstances arises because of the proximity, the fact that the spleen is adjacent to the stomach and to a degree the stomach nestles into the gastric impression of the spleen?---Yes, there are a number of different anatomical variations but certainly it sits right on the sort of lateral border of the stomach and the spleen sort of nestles around that border but the cause of splenic injury varies. There are the causes to the short gastric arteries which is the (indistinct) or you may get just a splenic tear due to an adhesion at the periphery part of the spleen which usually doesn't cause too much problem and can be sort of rectified with different techniques. . . . Then why wouldn't it be sensible when you are dealing with an elective procedure to say to a patient, 'we are working in close proximity obviously with the stomach and with the spleen and there is a small risk of perforation of the stomach, there is a small risk of bleeding resulting from the division of vessels and there is a small risk of perforation of the spleen'? Why wouldn't you say all of those things?---Because then you are going to have to say things like, 'we are working close to the diaphragm, we are working close to the liver, we could injure the liver, we could injure the diaphragm.' There's been cases, I have heard,
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related to injury of the diaphragm in relation to even this procedure and then you would have to go-I think on the same basis that your mentioning you would have to go through a whole range of complications which are rare, very very very low incidence and I don't think in those circumstances it's a necessary reason to say all of the complications that can occur in any particular procedure. . . . So why wouldn't, in those circumstances, you tell a patient that not only there was some danger of death resulting from septecemia from perforation of the stomach wall, but also there was some danger of a splenectomy, that cause a splenectomy is a recognised means of dealing with uncontrollable bleeding in these circumstances?---Right. Based on my own experience and what I mentioned about no one in the literature saying that this is a complication with laproscopic or gastric banding or lap banding in the past, then it is not one that you would say there was a high risk of any sort occurring. In circumstances where there has been previous abdominal surgery, upper abdominal surgery, would you say, as you have suggested in your letter, to a patient contemplating such procedure that there might be unexpected complications which might occur? If for instance the area of the previous surgery was in the area of the stomach, I certainly would include a number of different complications… . . . Given the proximity of the spleen, why not the possibility of injury to the spleen? You may well say that the possibility of the spleen, if you felt that this was an area that had been dealt with in the past in a previous particular operation…" 57 In his second report (Exhibit 15) Dr Frydenberg stated: "She has had two laparotomies and he was concerned about adhesions there. The laparotomy was seen to be associated with previous gallbladder surgery, which is really on the other side and therefore, even though there would be adhesions around the stomach area, it is unlikely that they would right up against the spleen and therefore damage to the spleen would not necessarily
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be one of the things one would think of in your advice to the patient. It would be a general saying that there are likely to be adhesions, which would make the operation more difficult and there may be complications you had not anticipated, which is more general rather than specific in relation to the spleen itself." 58 Cross-examined on that statement Dr Frydenberg said: "The spleen sits protected up right underneath the costel margin. We are not talking about just in the stomach area where I can refer to it on myself, but right up posterierly and its protected by the rib cage and therefore, if you anticipate an operation on this side of the abdomen associated with the gallbladder, and the furthest across you get is around mid stomach level, it is not common to see any adhesions from the post cholecystectomy. I have done a number of cases post cholecystectomy and I don't recall too many where the spleen in that area was affected at all. But the escape of bile, for example, in the course of a cholecystectomy or blood for that matter might all lead to the presence of adhesions?---Yes, but generally that area-that's in the area of the gallbladder. Yes, you would accept, would you not, that it's not beyond the bounds of possibility that it might impact upon the area the subject of the procedure? Well, if it could-went across to the other side and the patient was rotated and tipped upside down there may be a possibility."
The plaintiff's understanding as to the function of the spleen and consequences of its removal. 59 Prior to the procedure in December 1996 the plaintiff had no understanding of the function of the spleen. It was her evidence that had she been told of the small risk of a splenectomy she would have made inquiries as to what the spleen does and what would be the consequence of losing it. She "…wouldn't have given up one of (her) organs." It was her evidence that albeit she did not know what the function of the spleen was she regarded the risk that she might have had a splenectomy as being more serious than both the risk of death and the risk of having her stomach pierced in the course of the operation. She did not fear the risk of dying because she did not believe that she would die in the operation and she understood that if the stomach were pierced that it could be
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repaired. She understood that bleeding was a complication which could arise in surgery. 60 The plaintiff was not aware at the time of her operation as to what the consequence of the removal of the spleen might have been. Following the operation when the defendant attended on her and informed her about the removal of the spleen it was her recollection that she was told that she had been given three injections whilst in theatre, they being for meningicocal, HIV and pneumonia. Quite clearly on the medical evidence the plaintiff is mistaken in her belief that one of the three illnesses was HIV. She also claimed that the defendant told her to see her doctor "to get my Hep B injections". She denied that she was mistaken in that advice. Again to suggest that there was a risk of hepatitis B is not consistent with the medical evidence insofar as susceptibility to illness as a consequence of the splenectomy. Likewise it was her evidence that the defendant also told her that if she went to a dentist she would need a course of antibiotics if she was having dental work. Again that was denied by the defendant and is not consistent with the other medical evidence so far as the consequences of a splenectomy are concerned. 61 In her evidence the plaintiff said she had earlier considered but decided against the stomach stapling procedure. Save to say that the procedure "sounded frightening" she did not say what if any inquiries she made about that procedure or any risks associated with it. 62 After her consultation with the defendant and reading the information booklet there was no indication that she raised any concerns about the risks associated with the procedure with the defendant. She did inquire about revision of the old scarring but that is all. She did not indicate that she was anxious or otherwise concerned about any risks albeit as she had been told there was the risk of serious consequences not the least of which was the possibility of death. Thus there is no evidence that she had any substantial fears or concerns about the procedure.
The plaintiff – psychiatric evidence 63 Peter David John McCarthy is a consultant psychiatrist. He saw the plaintiff on referral from her general practitioner. Mr McCarthy saw the plaintiff initially on 20 February 2001 and then on 24 March 2001 and 26 April 2001. He prepared a report to the plaintiff's solicitors (Exhibit 4). The history he took from the plaintiff was substantially consistent with the evidence given by her at trial.
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64 Mr McCarthy expressed the opinion:
"This lady has suffered from mild to moderate fluctuating symptoms of anxiety and depression for many years. These symptoms were present prior to her operation in December 1996, but on the history offered she has developed an exacerbation of her depressive disorder so that she now meets the criteria for a major depressive disorder of moderate severity (DSMIV296.22). She also suffers from panic disorder and agoraphobia (DSMIV300.21) in association with her depressive disorder. On the history given this lady has developed an obsessive compulsive disorder and checking since the operation in question. She has developed a hypochondriacal concerns about developing illness and a fear of germs and uncleanliness. It is notable that she has a poor understanding of the consequences of splenectomy and in particular a poor appreciation of the degree of increased risk of infection or illness as a result of this disorder. In the presence of such uncertainty she has developed a number of exaggerated fears about her future health. He hypochondriacal fears have taken the form of a obsessive compulsive disorder with frequent cleaning and showering. She has also developed a concern about toilets with a poor understanding of the nature of infections and has also developed a fear of surgery. Her obsessive compulsive disorder (DSMIV300.3) consists of compulsive and repetitive behaviours in the form of cleaning and washing and also of intrusive and exaggerated obsessive thoughts about the possibility of contracting disease." 65 His report went on further to state: "None of her conditions are directly physically related to the removal of this lady's spleen. Her depressive disorder and the associated panic disorder with agoraphobia represented in my view an exacerbation of her previous mental condition a (sic, and) result from a number of factors. These include - 1. a belief that the gastric banding was not successful in reducing her weight i.e. in retrospect the operation was not helpful;
2.
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3. her concern over the significant consequences of her splenectomy with in my opinion an exaggerated and unrealistic appreciation of the subsequent morbidity;
4. a concern over the requirement to have regular vaccinations for pneumococcus, haemophilus influenza and meningococcal infections. Her obsessive compulsive disorder on the history available was not present prior to the operation and also in my view represents her concern about the possible consequences of the splenectomy. If she has read Mr Watson's letter on the splenectomy she does not appear to have absorbed the information. She insists that in her view the spleneoctomy represents more than a misadventure." 66 Mr McCarthy indicated that he had no reason to believe that the plaintiff was deliberately dissembling or exaggerating. He believed that her perceptions were hypochondriacal, that they were exaggerated, that she appeared not to have taken advantage of information offered to her and was irrational in her approach to the entire matter. Her response was "going for fear, rather than for information in terms of the way of coping with the situation." From Mr McCarthy's interviews with the plaintiff it was apparent that she had seen other doctors prior to seeing him who had explained to her that the consequences of a splenectomy were not as serious as that which she was conveying to him. That exaggerated or unrealistic appreciation persisted notwithstanding the information with which she had previously been provided. Mr McCarthy presumed that the exaggerated appreciation she had was something she had developed after the operation. 67 Post operation she had an exaggerated appreciation of the splenectomy and consequences of it whilst it is not possible to know what her attitude might have been had she been made aware of the risk of a splenectomy prior to the procedure. Mr McCarthy had no reason to believe that she would have been any more able to benefit from rational information prior to the event. She has had four years of rational information since then yet she cannot absorb that. On that basis he could not conclude that she would have absorbed it before the event. 68 It was Mr McCarthy's view that the plaintiff's obsessive compulsive disorder arose from her genetical biological makeup and that the splenectomy was neither necessary nor sufficient to cause that disorder.
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He did not observe nor did he expect to see any other stressors which would give rise to the symptoms. He found the plaintiff to be focused on a certain attribution for all her problems, namely the splenectomy.
Was a splenectomy a material risk? 69 I have earlier in these reasons identified the test for the circumstances in which a warning should be given by a medical practitioner. To restate insofar as applicable in the circumstances of this case- "… a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patients position, if warned of the risk, would be likely to attach significance to it…" 70 Thus the test is one of "materiality". This standard does not deal with the foreseeability of the risk in question, save to the extent that the risk must be "inherent" in the procedure. In that respect a risk is real and foreseeable if it is not far fetched or fanciful, even if it is extremely unlikely to occur: The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40 at 48. 71 Having regard to the medical evidence I do find that in the circumstances of this particular case there was a real risk inherent in the procedure that the removal of the spleen may be necessitated. The defendant expected that by reason of the plaintiff's cholecystectomy that there would be some adhesions on the upper abdomen. He made that comment in his letter to the referring doctor dated 28 November 1996. In his evidence he said that as expected he found adhesions within the upper abdomen. The adhesions required dissection and inherent in that was the risk as did transpire of a small vein being divided and retracting as it did into the hilum. Of the options then to stop the bleeding removal of the spleen was the most appropriate. Thus I find on the defendant's own evidence the risk was real and foreseeable. I reject Dr Frydenbergssomewhat flippant statement regarding the possibility of the presence of adhesions in the upper abdomen as a consequence of the cholecystectomy. 72 Furthermore this conclusion is supported by the evidence of Mr Watson whose opinion it was that damage to vessels in adhesions between the stomach and the spleen was a foreseeable complication of the surgery with the consequence being the necessity to remove the spleen.
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73 In considering "materiality" it is appropriate to assess the risk "in the circumstances of the particular case". In F v R(1983) 33 SASR 189 at 192-193 King CJ identified the relevant factors in considering whether to advise of some risk (cited with approval in Rogers v Wittaker (supra) at 490; Rosenberg v Percival (2001) 205 CLR 434 per Gummow J at 454-455). Those factors include:
(i) The nature of the matter to be disclosed (including the nature and degree of the risk) 74 The risk was removal of the spleen. That was foreseeable. The defendant expected there may be adhesions within the upper abdomen. I accept Mr Watson's rationale that in dissecting adhesions vessels may be injured with consequential bleeding necessitating as the appropriate option removal of the spleen. However it is accepted that the risk of damage to the spleen resulting in a splenectomy from gastric banding surgery was minimal. On Mr Watson's evidence less than 1 in 1000. The risk was less than the risk of death associated with the procedure. The risk of damage to the spleen was comparable in its probability of occurring as damage to the stomach itself. Mr Watson was not aware of any instance of damage to the spleen occurring as a complication of this procedure. Likewise Dr Frydenberg had not heard of any instance where a splenectomy had resulted from the lap band procedure. He described it as "a rare complication of this operative procedure…". Nor was the defendant aware of any other instance where a splenectomy had been necessary in the course of this procedure. 75 The plaintiff was warned by the defendant of the risks associated with this procedure. He warned her of the risk of death (albeit that there had not been any deaths in Australia), bleeding, the risk of infection in the lung and wound and of heart attacks and strokes. The information booklet also warned of the same risks. In particular that the risk of death "… might occur in 1-2 in every 1000 who have the procedure." It also warned that there was probably "… about 1 chance in 10 that complications may occur at the time of the operation" and "may be of major significance..". 76 King CJ in F v R (supra) at 192 said: "Of course a small risk of great harm might call for disclosure although a greater risk of slight harm would not. A doctor is not expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision making of a reasonable person."
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77 The defendant did not consider that a warning specific to the risk of a splenectomy was necessary. To similar effect Dr Frydenberg would not go to specifics about each organ within the body simply because there was a very, very minor risk that a complication affecting any particular organ might arise. It was his evidence that:
"you would not go through a whole range of complications which are rare, very very very low incidents and I don’t think in those circumstances it's a necessary reason to say all of the complications that can occur in any particular procedure". (ii) The nature of the treatment proposed "The more drastic the proposed intervention in the patient's physical make-up the more necessary it is to keep him fully informed as to the risks and likely consequences of the intervention" per King CJ in F v R (supra) at 192. 78 The intervention here involved, as was appropriate in the circumstances, removal of the spleen. I accept the medical evidence that a splenectomy is a procedure with very little, if any, adverse affects on the health or well being of the patient. The only lasting affect on health is a very small increase in the risk of certain kinds of infection, which risk can be removed or alleviated by vaccinations. The risk of contracting either of those infections was identified by Dr Beaman as being extraordinarily remote. With the passage of some seven years since the procedure the risk is reduced even more so. With vaccinations, which persons with their spleen do not have, the risk of contracting those infections is reduced even more so for those who have had a splenectomy. (iii)The patients desire for information 79 The plaintiff went to the defendant seeking information concerning the lap band procedure and whether or not it would assist her in weight reduction. The defendant as was appropriate took a history from the plaintiff, he described to her using a lap band how it worked, he informed her that necessarily in her case it would require open surgery and he warned her, in general terms, as to the risks associated with the procedure. He told her that it was a life-changing event which should not be undertaken lightly. Likewise the information booklet conveys much of the same information to similar effect. 80 There was no evidence that the plaintiff informed the defendant that she had made inquiries some two years earlier about gastric stapling which procedure she said "sounded frightening". Nor did she say in her
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evidence about that what it was that made it sound frightening. She described that as being as a "major operation". The lap band procedure was no less a major operation. Despite that and after taking time over the weekend to consider the information conveyed to her she did not request any further information pertaining to the procedure. There was no evidence that the plaintiff showed any anxious concern about the possible risks. In her telephone conversation on the Monday following the consultation she only made mention of revision of her existing scaring. (iv) The patient 81 Prior to consulting the defendant the plaintiff had undertaken many diets to reduce her weight. All were to no avail. She had considered but did not pursue gastric stapling. Her weight problem bothered her in a number of ways. She was "looking at other avenues" to overcome her serious weight problem. She had basically got to the point where she was saying to herself that dieting was not going to work and so it was that she was looking at other avenues. She acknowledged that at the time when she went to see Dr Wong for the referral that she was seeking some sort of permanent solution to her weight problem. She seemingly did not discuss the surgery with anyone other than the defendant. She read the information booklet. She did not discuss the procedure or information with her husband. Her decision to proceed to have the surgery was made within four days of her consultation with the defendant. 82 From that evidence it is apparent that the plaintiff, albeit that she was warned of the risks of the procedure, was most anxious to do something as drastic as undergo this surgery to resolve her weight problem. Her temperament and attitude at that time was such that there were strong reasons, despite the known risks stated to her, to proceed with the surgery. (v) The general surrounding circumstances 83 The plaintiff did not seek to discuss the procedure further with the defendant, nor did she go back to her general practitioner nor did she discuss it with her husband. She read the information booklet. She made the decision to proceed without further inquiry. 84 Conversely the defendant had provided to the plaintiff what he considered to be all relevant information so far as the procedure and the risks associated with it not the least of which was the risk of death and provided the information booklet to her. It was not his practice to allow a patient to make the decision to proceed at the first consultation. Rather the patient should read the information booklet and reflect upon what
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he/she had been told and what was contained in the information booklet. He would respond to any questions or concerns which the patient might raise. He warned the plaintiff in general terms as to the risks associated with the procedure. A more specific warning as to the risk of a splenectomy was not given. The defendant was not and had no reason to be aware that the plaintiff if warned of this risk would have been likely to attach any significance to it. 85 That then deals with the factors identified by King CJ in F v R (supra). Those factors are not of course exhaustive. Each case must be determined in light of its own particular circumstances. 86 In identifying whether a reasonable person in the plaintiff's position would be likely to attach significance to a risk, (i.e. whether it is "material") attention must also be directed to the "content of any warning that could have been given": Rosenberg v Percival (supra) at par 69. Only by identifying the content of the risk and the warning said to have been required can then materiality be assessed. A broad reference to "splenic injury" would be of little use in determining either materiality or causation: Rosenberg v Percival (supra) at par 66. 87 A warning in the context of this case would have to take into account the extremely uncommon degree of risk as identified above. It would also have to take into account the fact that objectively a splenectomy is a procedure with very little (if any) adverse affects on the health of the patient. The only lasting affect on health being a very small increase in the risk of certain kinds of infection which risk can be removed or alleviated by vaccinations. 88 In the circumstances therefore any such warning that could have been given about the risk of a splenectomy would have to have been put in the context of the following: (i) that there is a very small risk of damage to the spleen in the operation; (ii) it was not a risk that the defendant had ever encountered or heard of having occurred; (iii) it was a non life threatening outcome; (iv) the degree of the risk was less than that of death or perforation of the stomach;
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89 The plaintiff had been warned of the risk of death and accepted that risk. She flippantly regarded that outcome as not being of significance. She had faced that risk with delivery of her children. She did not believe that it would happen to her. Death was final and if it did happen that was the end of the matter. She was warned too of the risk of perforation of the stomach but she understood this could be repaired. She was warned of the risk of bleeding and that there could be complications which followed that. Without more, she seemingly regarded those risks as inconsequential. 90 In the end result and having regard to all of the circumstances I conclude that a reasonable person in the plaintiff's position would not be likely to attach any significance to the risk of a splenectomy. A reasonable person would not regard the risk of splenectomy as having any significance when that risk is less than the risk of death. Accordingly I conclude that in the circumstances of this case the risk was not "material".
Causation - had the plaintiff been warned would she have undergone the procedure? 91 The critical question for the purposes of causation is whether the plaintiff if given the kind of information in relation to the risk of splenic injury that would have been available, would have changed her mind and declined to undergo the gastric banding procedure. The test is subjective in the sense that it asks what this plaintiff would have done. Nevertheless it is a matter which must be assessed in light of the information available to the plaintiff at the time for making such a decision, not by reference to events which have occurred since. For this reason the evidence of the plaintiff as to her hypothetical "decision" that she would not have undergone the procedure must be treated with caution. 92 The remarks of Gleeson CJ in Rosenberg v Percival (supra) at par 16 are apposite:
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"There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this court have drawn attention to the danger of a failure, after the event, to take account of the context before or at the time of the event, in which a contingency was to be evaluated." 93 Similar remarks were made by Kirby J in Chappel v Hart (1998) 195 CLR 232 at 272: "The subjective criterion involves the danger of the 'malleability of the recollection' even of an upright witness. Once a disaster has occurred it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind that a failure to warn had significant consequences for undertaking the medical procedure…" 94 Further to those general considerations the plaintiff's assertion that she would have acted differently if warned about the very small possibility of splenic damage must be considered in light of the subsequent psychiatric evidence. That evidence suggests that when she attended on Dr McCarthy in 2001 (some five years after the procedure) she had "an exaggerated and unrealistic appreciation of the subsequent morbidity" following her splenectomy. Furthermore her evidence at trial demonstrated that she continues to have an irrational and unreasonable appreciation of the seriousness of splenectomy. Since the operation she has not been able to accept or take advantage of information offered to her by medical practitioners pertaining to her hypochondriacal fears about her health. On Mr McCarthy's evidence the plaintiff's obsessive compulsive disorder is a consequence of her genetical biological makeup. That is it is unrelated to her splenectomy. Prior to the procedure in 1996 the plaintiff did suffer from mild to moderate fluctuating symptoms of anxiety and depression for many years. That condition developed to a major depressive disorder of moderate severity subsequently.
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95 In that respect the plaintiff has held to an unsubstantiated and unreasonable perceived susceptibility to illness namely hepatitis B and HIV.
96 Similarly the plaintiff's belief as to the failure of the gastric banding procedure to assist her in weight loss is unreasoned and unjustified. She could not have expected that it would assist without regular monitoring and adjustment. 97 There was a low probability of the risk occurring and the likely consequences were not, when properly understood and appreciated, at all severe. On the other hand there was the plaintiff's determination to do something about losing weight. 98 In 1996 the plaintiff sought out the defendant because she had been troubled by twenty years of serious obesity which was having a deleterious effect on her life and she had not been able to control her weight in any other way. She had given up on dieting as a solution and wanted a permanent solution to the problem. She was quite clearly prepared to take the risk of death and other serious complications associated with the gastric banding procedure and did take that risk. 99 The plaintiff's assertion that she would not have had the procedure had she been warned does not carry great weight given that her evidence was given in the knowledge that the outcome of her case depended upon that assertion being maintained. There are no extraneous or additional factors to substantiate that assertion, ie some particular factor which suggests the plaintiff had grounds for not doing what a reasonable person in her situation might be expected to have done (see Gummow J in Rosenberg v Percival (supra) at par 89 referring to Hutchinson J in Smith v Barking, Havering and Brentwood Health Authority (1994) 5 Med LR 285 at 289). 100 I reject the plaintiff's assertion now that had she been warned she would not have proceeded with the surgery. In the circumstances I conclude that even had the defendant given a specific warning to the plaintiff as to the risk of a splenectomy she would nevertheless have proceeded with the operative procedure.
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Conclusion
101 The failure of the defendant to inform the plaintiff of the small risk of a splenectomy was not a negligent breach of the defendant's duty to warn her of a material risk. 102 Further, if there had been such a breach of duty, it was not causally related to the plaintiff's injury because, if the plaintiff had been aware of the risk, she would have proceeded with surgery. 103 Accordingly the action must be dismissed.
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