Hassan v Sydney Local Health District (No 2)

1. [1]

   On 28 November 2019 it was ordered that the following question be decided separately and before all other questions that remain to be resolved in the proceedings:

2. [2]

   That question is now before the Court for determination. If the answer is yes then no other issue will need to be decided in the case and it would follow that there should be judgment for the defendant on the plaintiff’s statement of claim filed 5 April 2019. If the answer to the separate question is no then it would follow that the medical procedure referred to in the question constituted an unlawful assault: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15. The Court would in that event make directions for the filing of medical and lay evidence on damages and proceed in due course to an assessment.

3. [3]

   The plaintiff has been self-represented throughout the proceedings, which commenced in May 2018. Her statement of claim of 5 April 2019 alleged negligence in various respects in the carrying out of a muscle biopsy at the defendant’s Royal Prince Alfred Hospital (“RPAH”) on 7 April 2015. It was also pleaded that a general anaesthetic was administered on that day without the plaintiff’s consent. These claims were dismissed on 28 November 2019 because the plaintiff did not produce a medical expert’s report supporting each element of her causes of action, in particular, breach of duty of care and causation of damage. A supporting medical opinion was required to be filed with the statement of claim by r 31.36 of the Uniform Civil Procedure Rules (“UCPR”). After liberal extensions of time, the plaintiff first produced medical reports in August and September 2019. These did not support her claims in essential respects.

4. [4]

   That left for determination only the plaintiff’s claim that she had not given consent for the biopsy of the left vastus. There was some evidence of damage in connection with that claim, in that the biopsy of the vastus had involved an incision and it had left a scar. This cause of action therefore turns upon the factual issue raised by the separate question now before the Court. The plaintiff’s claim in this respect does not depend upon medical opinion as to any departure from professional standards of reasonable care.

5. [5]

   The history of dismissal of most of the plaintiff’s case is set out in more detail in two earlier judgments: Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 delivered on 14 June 2019 and Hassan v Sydney Local Health District [2019] NSWSC 1652 delivered on 28 November 2019.

6. [6]

   The defendant’s records of the treatment of the plaintiff were before the Court in an interlocutory hearing on 14 June 2019 and were summarised at [4]-[17] of the judgment delivered that day. The following factual findings are in part based upon the records referred to in that judgment, which were again before the Court on the final hearing, and also upon affidavit and oral evidence.

Dr Evans

1. [7]

   During 2014 the plaintiff's general practitioner Dr Kwok of Auburn referred her to Dr Teychenne, a neurologist. Over the preceding two years the plaintiff had presented with proximal muscle wasting of the lower and upper limbs associated with muscle weakness. Doctor Teychenne found her symptoms consistent with myopathy and/or dystrophy.

2. [8]

   On 14 October 2014 Doctor Teychenne referred the plaintiff to Dr Judith Spies, Senior Neurologist and Head of the Neuromuscular Clinic at RPAH, for consideration of a muscle biopsy and genetic studies. On 11 February 2015 the plaintiff was seen at the Clinic, initially by Dr Evans, a Neurology Advanced Trainee (Senior Registrar). In an evidentiary statement dated 13 March 2020, adopted on affirmation at the hearing, Dr Evans acknowledged that he had no independent recollection of the plaintiff. He was able to recount events by reference to clinical records and on the basis of usual practice, from which he had no reason to believe there had been any departure.

3. [9]

   Dr Evans described taking a detailed history from the plaintiff and conducting a thorough examination and clinical assessment of her. Immediately following this, still on 11 February 2015, he presented the plaintiff’s case and his key findings to the senior clinicians, Dr Spies and Dr Tracey Jankelowitz, Senior Neurologist. The plaintiff was also present. In this joint consultation the doctors formulated a treatment plan. Dr Evans’ clinical notes from the day conclude with a list of further investigations that were proposed to be undertaken. The last two of these were recorded by Dr Evans as follows:

4. [10]

   I accept the following evidence given by Dr Evans:

5. [11]

   I am satisfied on Dr Evans’ evidence that the plaintiff was informed at this meeting that the doctors proposed to have biopsies performed on both the left deltoid and the left vastus. It is apparent that by the time the plaintiff attended the Neuromuscular Clinic in February 2015, muscular weakness in her upper and lower body had become chronic and diagnosis had eluded several medical practitioners. There is no reason why the specialists with whom the plaintiff consulted on 11 February 2015 would refrain from explaining to her the further investigations to be undertaken, including the invasive surgical procedure of biopsies. There is every reason why Dr Evans would adhere to his usual practice of explaining, inter alia, the biopsy procedure and the fact that it was necessary to take specimens from muscles in both the upper and lower regions of the body. Throughout several appearances before me in the course of these proceedings the plaintiff has demonstrated no difficulty in understanding spoken English. I do not doubt that she understood from the 11 February 2015 consultation that the two sites were to be biopsied.

6. [12]

   Either during the consultation with the plaintiff at the Neuromuscular Clinic on 11 February 2015 or within approximately the next two days, Dr Evans completed the necessary paperwork for the biopsies. First, he hand-wrote a letter of referral to Dr Stalley, an orthopaedic surgeon in RPAH’s Institute of Rheumatology and Orthopaedics (“IRO”), a clinical service of the RPAH. The letter was signed by Dr Evans “on behalf of Dr Spies”. It read, in part, as follows:

7. [13]

   On 13 February 2015 Dr Evans also commenced a Recommendation for Admission booklet, being a pro forma printed booklet of several pages in which pre-admission information was required to be inserted by the referring and treating doctors. Information was entered in this booklet by Dr Evans on 13 February 2015. The entries were written on a page entitled “Recommendation for Admission” and they were carbon copied through to a page entitled “Pre-Admission Unit Request Form”. Relevant entries included the following:

8. [14]

   On 13 February 2015 Dr Evans completed by hand a printed “Neuromuscular Pathology Request” form addressed to RPAH’s Neurology laboratory. The section for “Tests requested” was completed in handwriting as follows:

9. [15]

   Dr Evans’ wrote a report to Dr Teychenne dated 11 February 2015. In this he made reference to the extensive testing that had been ordered with respect to the plaintiff. The report concluded as follows:

10. [16]

    The plaintiff gave evidence that during her attendance at the RPAH Neuromuscular Clinic on 11 February 2015 she signed a written consent for a biopsy in which only the left deltoid was referred to and not the left vastus. The defendant has produced its records and they have been verified on affidavit as complete. I accept that there have been produced all documents relating to the relevant treatment of the plaintiff. I find no indication of omissions, such as an absence of records of a type that one would expect to see or cross-references within the documents to others that have not been produced. Amongst these records there is no written consent signed on 11 February 2015. I do not accept that the plaintiff signed such a document on that day.

11. [17]

    In this respect I prefer the evidence given by Dr Evans in the following passage of his statement filed 13 March 2020:

Pre-admission clinic

1. [18]

   On 23 March 2015 the plaintiff attended RPAH and an assessment was carried out by Dr Rhada McKay, an anaesthetist. A form entitled “RPAH Pre-Admission Medical-Anaesthetic Assessment” was completed by the doctor. In the box marked “Planned Procedure” Dr McKay hand-wrote "Muscle Biopsy left deltoid + vastus". The horizontal bar of the symbol “+” was written in contact with the “v” of “vastus” and the “v” and “s” were poorly formed. This has led the plaintiff to assert that, instead of “+ vastus”, the word "transtenes” has been written. The evidence does not indicate that there is any such word, with a medical or other meaning. I am comfortably satisfied that Dr McKay wrote “+ vastus" on this part of the form but that her writing in this respect is poorly legible.

2. [19]

   Dr McKay took from the plaintiff her anaesthetic history and discussed the options of a general or a local anaesthetic. The plaintiff’s cardiovascular and respiratory signs were assessed and her airway and teeth were examined for any risk of choking. The results of the examination and essentials of the plaintiff’s history were recorded by Dr McKay on the Assessment form.

3. [20]

   On 23 March 2015 there was also completed, by a Registered Nurse, a document entitled "IRO Admission and Discharge Planning Information". This contained a block for insertion of "Planned operation as stated by patient (if different from RFA discuss with VMO)". The nurse wrote in that block: "Biopsy left deltoid". I infer that the nurse who completed this document took the description of the procedure from Dr McKay’s document and could not discern the poorly written characters “+ vastus”. This was not significant in relation to the issue now before the Court. The document entitled Admission and Discharge Planning Information was a record for administrative rather than clinical purposes. It played no role in informing the anaesthetist or the surgical staff, two weeks later when the plaintiff was admitted, about the operation to be carried out, for which her consent was required.

4. [21]

   The plaintiff gave evidence that she signed a second consent form on 23 March 2015, again referring only to a biopsy of the left deltoid and not the left vastus. No such document appears amongst the defendant’s records. I do not accept that the plaintiff signed any such document on 23 March 2015. As Dr Evans explained, there were good reasons for leaving the obtaining of consent to the surgical specialist on the day of the operation, at which time risks could be explained and consent could be obtained on a fully informed basis. The plaintiff said that she was given reasons for her consent being obtained on 23 March 2015, having to do with her being a private patient. The reasons she has attributed to the hospital staff in this respect are incoherent and I do not accept that they were given.

Dr Snir

1. [22]

   In April 2015 Dr Afik Snir was a Junior Medical Officer employed in the hospital. His responsibilities included medically admitting patients for elective surgery at the IRO. According to his statement filed on 3 February 2020 and adopted on affirmation at the hearing, he does not independently recall admitting the plaintiff but is able to recount the relevant events by reference to clinical notes and hospital records, relying upon his usual practice at the time and having no reason to believe that there was any departure from that practice.

2. [23]

   On about 3 April 2015 Dr Snir received the surgical list for 7 April. He commenced the preparation of electronic records relating to the plaintiff on 4 April. The plaintiff attended at the IRO for admission before 9:00 am on 7 April 2015. By an administrative process there was generated a printed document entitled “Admission Summary Sheet” in respect of the plaintiff. On this document the “Pres Problem” and “Planned Procedure” fields were both completed in typescript as follows:

3. [24]

   I am satisfied that the administrative staff member who completed the document must have misread Dr McKay’s poor handwriting on the Pre-Admission Medical-Anaesthetic Assessment referred to at [18] above. This is of no consequence. Dr Snir explained that the Admission Summary Sheet is not a document on the medical file that is commonly used by Junior Medical Officers such as himself when medically admitting a new patient. There is no evidence to suggest that the mistaken entry on the Admission Summary Sheet was seen or relied upon by any of the medical staff whose evidence is relevant to the question whether the plaintiff consented to biopsies at two sites on her body.

4. [25]

   Shortly before 9.00am on 7 April 2015 Dr Snir interviewed the plaintiff for the purpose of admitting her. At that time he had with him, in accordance with his standard practice, the hard copy medical file with respect to the plaintiff. This would have included the following:

   1. (1)

      The Recommendation for Admission and the Pre-Admission Unit Request Form completed by Doctor Evans on 13 February 2015: see [13] above.

   2. (2)

      The handwritten referral from Dr Evans to Dr Stalley: see [12] above.

   3. (3)

      The Neuromuscular Pathology Request form sent by Dr Evans to the Neurology Laboratory on 13 February 2015: see [14] above.

   4. (4)

      The documents completed at the pre-admission clinic on 23 March 2015 by Dr McKay and the registered nurse: see [18] and [20] above.

5. [26]

   Unsurprisingly Dr Snir does not have a present specific memory of having looked at documents (1)-(3). He has said that if they were on the plaintiff’s medical file he would have reviewed them at the time of medically admitting her. There is no reason for the Court to doubt that they were on the file and that Dr Snir would have read that the procedure for which the plaintiff had been referred was a biopsy of both the left deltoid and the left vastus. That description is repeated in numerous places. An essential aspect of Dr Snir’s responsibilities was to know what the plaintiff was being admitted for on 7 April 2015 and that she understood this. It is highly improbable that Dr Snir would have failed to verify that the standard documents for a surgical admission were on the medical file or that he would have failed to check those documents to confirm the procedure that was to be performed.

6. [27]

   The clinical progress notes that Dr Snir wrote up when he admitted the plaintiff at about 9:00 am on 7 April 2015 took the form of a photocopied template prepared by nursing staff, with a checklist of abbreviations for topics to be considered the doctor when seeing the patient. The first entry on the clinical notes, written in by Dr Snir, is:

7. [28]

   Dr Snir gave this evidence with respect to that entry:

8. [29]

   On these clinical notes the checklist of items to be verified includes the word “consent”. Dr Snir circled that word and ticked it. He gave the following evidence about those markings:

9. [30]

   Dr Snir identified a “Request/Consent for Medical Procedure/Treatment” form that was completed by him with the plaintiff on 7 April 2015 and signed by her at around 9:00 am. The first section of this document is headed “Provision of information to patient”. It reads as follows:

10. [31]

    The second section of the document is headed “Patient consent”. Below that heading there is a full printed consent, including the following words:

11. [32]

    The operating suite nurse's report records that the plaintiff underwent her operation between 12.02pm and 12.30pm on 7 April 2015. The plaintiff’s evidence is that she did not see Dr Snir before her surgery and that she only saw a nurse who admitted her between 8:00 am and 8:30 am. She said that she may have seen Dr Snir when she was in recovery after the operation, at which time she said she was unwell, vomiting and still affected by the anaesthetic. The plaintiff asserted in an affidavit sworn on 24 January 2020 that she was presented with the document entitled Request/Consent for Medical Procedure/Treatment post-operatively, in the circumstances described above, and that she signed it then.

12. [33]

    Dr Snir’s statement filed 3 February 2020 contains this evidence:

Dr Allenby

1. [34]

   In April 2015 Dr Allenby was a Provisional Fellow in anaesthetics employed at RPAH. He provided anaesthetist cover for the surgical list at the IRO on 7 April 2015. He was assigned to Dr Stalley’s list, which included the plaintiff. Like the other doctors, Dr Allenby does not purport to have an independent recollection of the plaintiff but has given evidence on the basis of his usual practice and review of clinical notes. He said that his usual practice was to review the daily theatre list on arrival at the IRO, from which he obtained the name of each patient, the type of procedure to be undertaken and the estimated duration of the procedure. From this an “Anaesthetic Record” was partly completed, including the description of the operation, for each patient. Dr Allenby would then see each patient on the list, either on the orthopaedic ward or in the anaesthetic bay immediately outside the operating theatre.

2. [35]

   Dr Allenby’s usual practice was to review the patient’s clinical records and ask the patient to explain in his or her own words the reason for admission. He would cross-reference this to the records to identify any discrepancy between the patient’s answer and the proposed procedure as documented. Dr Allenby gave this evidence a statement that he affirmed at the hearing:

3. [36]

   Dr Allenby identified the Safety Checklist, the first section of which is headed “Sign in one” and contains an instruction that this is to be completed “before starting procedural sedation/anaesthesia”. In that first section there are listed eight items for confirmation by the anaesthetist. The second item is: “Planned procedure matches consent”. The box marked “Yes” adjacent to this item was ticked by Dr Allenby. With respect to this he said:

4. [37]

   The appropriate answer boxes for each of the other seven items in the Checklist were also ticked. Underneath all of these items, at the end of the first section of the document, Dr Allenby wrote his name and signed, before proceeding to the operating theatre with the plaintiff.

5. [38]

   The plaintiff disputes Dr Allenby’s evidence comprehensively. She said: “I never seen Dr Allenby. I remember every doctor I’ve seen”. I reject the plaintiff’s evidence on this and I accept Dr Allenby’s evidence, which is supported by multiple contemporaneous records.

Rejection of the plaintiff’s evidence

1. [39]

   It is apparent from the printed pro forma documents that were used in connection with anaesthesia and surgery at RPAH that the hospital had in place an elaborate system of checks that were required to be undertaken and recorded for all surgical patients, to verify that in each case knowing consent had been given for the specific procedure proposed to be carried out. I accept that the doctors who were most closely involved in this in relation to the plaintiff’s surgery on 7 April 2015, Drs Snir and Allenby, conscientiously applied this system of checks in accordance with a routine of usual practice in which they were evidently well drilled. I am satisfied that the plaintiff’s consent for a biopsy of both her left deltoid and left vastus given on the morning of 7 April 2015 before the procedures were carried out.

2. [40]

   Against the weight and credibility of the defendant’s evidence the plaintiff asserts that her consent, limited to the left deltoid biopsy, was given on 11 February and 23 March 2015, and that on the day of the surgery the subject of consent arose only in the fraudulent procuring of her signature after the operation. This evidence is against the probabilities and unsupported by any contemporaneous record or indication. I find the plaintiff to be a witness unworthy of credit. In cross-examination she disputed and quarrelled with everything put to her, including matters that appear incontestable in the face of the records and matters that are removed from the central issue. The plaintiff disputed her signs and symptoms as recorded by Drs Teychenne and Evans. She disputed that she had seen doctors whose names are plainly shown on contemporaneous attendance records. The plaintiff refused to answer some questions and persisted in her refusal despite warnings that she was compellable.

3. [41]

   The plaintiff denied the authenticity of numerous hospital records and insisted that there were other and different records of her treatment that have not been produced, a proposition that I reject. She disputed that correspondence was sent by Dr Evans to Dr Teychenne on the dates recorded. She maintained that certain nominated doctors had been engaged to provide her treatment and to carry out procedures, other than the doctors who in fact attended. The plaintiff maintained that she was a private patient. She refused to accept the effect of a document on which she had clearly signed an election to be admitted as a public patient. With the plaintiff, everything is in dispute, whether it matters or not, and no matter how firmly it may be established by other evidence and by concordance with surrounding circumstances. The plaintiff’s assertions and denials cannot be relied upon, because her approach is one of blanket denial disengaged from any endeavour to present the truth.

Evidence and further submissions from the plaintiff after the hearing

1. [42]

   After the hearing the plaintiff submitted by email to my Associate additional submissions and further affidavits sworn by herself and annexing copies of records. As the plaintiff is unrepresented and was apparently unaware of the irregularity of providing such additional material without leave, I reviewed it with the intention that if there should appear from it anything that advanced her case then I would give the defendant an opportunity to respond before taking the additional material and the response into account. I found that the further submissions, affidavits and documents supplied after the conclusion of the hearing are for the most part repetitive of material that was already before me and otherwise of no consequence. Accordingly it has not been necessary to resume the hearing or to adopt any other procedure to give the defendant an opportunity to respond.

Orders

1. [43]

   I answer the separate question for determination: Yes. The plaintiff consented to a procedure in which biopsies would be performed on both the left deltoid and the left vastus on 7 April 2015. Therefore, the plaintiff has failed to establish the only remaining pleaded cause of action in her amended statement of claim. There will be judgment for the defendant and an order that the plaintiff pay the defendant’s costs of the proceedings.