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Full judgement.doc

  1. 1. This is the full judgement delivered yesterday by Judge Susan Cohen in the County Court: 1. Ten years before the hearing of this case commenced, Mrs Daniela Paterno was referred to Mr Stephen Hookey, an oral and maxillofacial surgeon, for advice on possible oral surgery to correct her malocclusion. She accepted the five step treatment plan recommended by him, of combined surgery and orthodontics. The second operation undertaken by Mr Hookey as part of that plan, sagittal split osteotomy to advance her lower jaw, was unsuccessful. Since it was performed in July 1998, Mrs Paternos life has been dominated by facial pain and oral disabilities, attempted remedial treatments, and the effects of medication. She sues Mr Hookey in negligence, claiming general damages, and past and future expenses. 2. The plaintiffs case in negligence is put on two bases: (i) That the defendant advised an inappropriate treatment plan for her, particularly in that it included surgery; and (ii) That the defendant failed to adequately warn her of what were allegedly "high risks" of complications in her circumstances from the surgery he recommended, specifically the risks of non-union of bone and of nerve damage; and that if adequately warned she would not have agreed to the treatment. A further pleaded allegation, that the surgery was not performed with reasonable skill and care, was not pursued. 3. The defendant’s case is that the treatment plan he recommended was appropriate for the plaintiff, and that the non-union of bone and severe long- term pain which resulted were each very rare consequences which did not require specific warnings. He maintains that he adequately advised her of the risks of complications, but that if he did not, those of which he did not advise were not "high risks", and if fully informed of them she would still have agreed to proceed with the surgery. 4. Also in issue is the appropriate quantification of damages. The defendant does not dispute that as a result of the surgery he performed on Mrs Paterno on 16 July 1998, she has in fact suffered serious consequences requiring much remedial treatment, leaving her with permanent symptoms, and seriously affecting her life. The central area of dispute as to damages is whether her current treatment with high levels of medication, particularly opiate-based, and their many debilitating consequences, is likely to continue for the rest of her life, or whether pain management programs might succeed in enabling withdrawal from opiate use, better ability to manage her pain and disabilities, and some improvement in her lifestyle. The defendant also disputes a claim for unpaid care by Mr Paterno, and argues that there should be amounts offset for what might have been other dental costs had the defendant’s treatment plan not been undertaken. Background to surgery 5. Mrs Paterno was born in Italy, came to Australia as a young child and, although she says she left school quite young because she lacked interest in it, she presents as a woman of commonsense, reasonable intelligence, and with English as her first language. She married at age 21, and had three children who are all now adults. She had worked before her marriage in a solicitors office, and in the early 1980s she was actively engaged in the new business being established by her husband and his business partner, of a reception centre, catering to large Italian weddings and similar functions.
  2. 2. 6. In early 1997, at age 47, Mrs Paterno was living an active social and domestic life. Her husband was running successful businesses. Her eldest child, her daughter Susan, had left home but was still close to the family, and her two sons still lived at home, the youngest in his late teens and studying. Both of them worked part-time in the reception centre business. Although no longer directly engaged in the business herself, she still had some involvement in organising some of the functions there. Her husband was president of the Vizzini Social Club, and she was active on the women’s committee and in organizing and attending its functions. She put energy into visual appearances, took care in her own clothes, and in presentation of occasions when she entertained in her home and at functions she organized.7. In late 1996 and early 1997, she experienced some facial pain in her sinus area. She thought it related to a cold she had had and consulted her general practitioner. Antibiotics improved but failed to resolve it. As the pain seemed to extend into her teeth she then thought it might be dental-related. She was also experiencing angular cheilitis, which manifested with red sores forming at the corners of her mouth as a result of excessive moisture being trapped in the crease or overlap of skin. This had been a recurring condition over a couple of years. Visually, the redness could be camouflaged with makeup. She also had some problems chewing and biting. She was already missing all lower molars on the left side, and all but one on the right. When her husband attended a dental appointment in early 1997, with Dr Guido Romano, who was the family dentist and also a family friend, she took the opportunity of accompanying him and consulting Dr Romano about these problems.8. Dr Romano obtained X-rays and concluded that her overbite had worsened. He referred her to an orthodontist, Dr Robert Schwartz who was Dr Romano’s "orthodontist of choice" for his patients, to whom in fact the Paternos son had previously been referred. Dr Schwartz obtained further diagnostic studies, then reported to Dr Romano that, in his view, the plaintiffs condition would best be treated by a combined orthodontic and surgical approach. This he said was because the "simplest" plan of moving the upper front teeth back with bands had two disadvantages. It would require extraction of further teeth - and Mrs Paterno was already missing many back teeth - and moving the front teeth back could well leave an unsatisfactory facial aesthetic effect – retruded upper lip and increased naso-labial angle.9. Dr Schwartz referred Mrs Paterno to Mr Stephen Hookey for advice on his proposed combined treatment plan. Mr Hookey was regularly used by both Dr Schwartz and Dr Romano if their patients required oral surgery. Mr Hookey had taught Dr Romano during his dental course, and Dr Romano was in the habit of attending his patients’ first consultation with Mr Hookey, and did so with the plaintiff not merely because she was a family friend.10. There is considerable dispute about what was and was not explained by Mr Hookey in his first consultation with the plaintiff on 4 April 1997. At the end of that consultation, Mr Hookey said he would send quotations for his parts of the treatment, and she should "think about it", and discuss any queries with Drs Romano and Schwartz, or with him again if she wanted. He forwarded a quotation to her for the cost of the treatment plan he proposed. The treatment plan as he wrote to Dr Schwartz, copied to Dr Romano, and advised the plaintiff, was to include five stages as follows: (1) Surgically assisted maxillary expansion (surgery to split the upper jaw bone in the centre and insert an expandable plate into the palate). (2) Fixed orthodontic therapy to level and align both arches (orthodontic expansion of upper jaw and teeth alignment, over a period of 9 months or more).
  3. 3. (3) Mandibular advancement surgery to create a Class I skeletal and dental situation (surgery splitting lower jaw on left and right and advancing jaw forward, fixed with plates and screws). (4) Post-surgical orthodontics and retention phase therapy. (5) Full prosthetic work-up with implant placement. He suggested a conventional bridgework in the lower right quadrant and three fixtures in the left mandible for a fixed bridge. This was described as the "ideal sequence of events" and the defendant wrote that he believed this treatment "would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution". Was the treatment plan appropriate?11. The plaintiff alleges that the treatment plan was inappropriate for her, in that with her presenting symptoms, at her age, and being a smoker, the surgical component of the treatment was inappropriate. Her statement of claim proffered as an alternative appropriate form of treatment, the use of implants and a crown/bridge combination without surgical intervention, but that alternative gained no support in the evidence. Even without that alternative, the plaintiff’s case is that there was negligence by the defendant in failing to consider, and to advise her, that dental treatment without surgical intervention was an appropriate form of treatment and management for her malocclusion.12. The plaintiffs presenting problems at the time of seeking advice on treatment were recurring angular cheilitis, intermittent pain in her sinus area - possibly temporomandibular joint pain - and difficulty chewing and biting. She described the pain level at barely one on a scale of one to ten. She agreed during cross-examination that she was also experiencing impact of her front lower teeth on the gum immediately behind the upper front teeth, and was also experiencing some dribbling from the corners of her mouth at night.13. Both parties agree that dissatisfaction with the aesthetic look or shape of her mouth or face was not part of the plaintiff’s presenting problems, and that the treatment plan was not aimed at cosmetic improvement. She was not warned of the risk of a worse aesthetic outcome.14. She was aged 47 and a smoker. She had had previous successful surgery with no ill-effect from general anaesthetics. The proposed treatment plan, had it gone successfully, required two operations under general anaesthetic, the first involving breaking the upper jaw, and the second breaking the lower jaw in two places, and after each inevitable swelling and pain, difficulty eating for a while, and very likely numbness in the lower lip and teeth for a period after the second operation. It involved protracted orthodontic work with braces and bands. It involved the placing of implants and crowning of them. It was to last some 18 to 24 months if all had gone well.15. The issue is whether such a plan was appropriate for a woman of the plaintiff’s age, who was a smoker, and with her presenting symptoms. There is no doubt that she had a malocclusion – an anatomical misalignment of her jaws which caused a marked overbite.16. Mr Hookey stands by his treatment plan for Mrs Paterno as being the optimal treatment for her malocclusion.17. When asked during his evidence about any other salient features of Mrs Paterno’s presentation, in addition to facial pain and angular cheilitis, Mr Hookey said: "The desire of the referring practitioners to restore her dentition and their desire to create a more normal morphology of her jaws". The plaintiffs counsel point to there being no mention of a desire by the plaintiff for morphological normalisation. They argue that there was a significant gap
  4. 4. between the plaintiffs presenting symptoms, and justification for the treatment plan including surgery proposed. This disparity between the technical correction of the malocclusion, and the presenting complaints is also reflected in the letter Mr Hookey wrote recommending the treatment plan which "would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution".18. In his evidence in chief Mr Hookey said that the relevance of her being a smoker was related to the risks of anaesthetic. He also said that it was relevant as it was his policy not to perform implants on smokers. He agreed in cross-examination that her smoking should have been regarded as relevant to the risk of non-union of bone, but not to an extent that made the surgery unsuitable for her.19. Supporting the appropriateness of the treatment plan is the evidence of Dr Schwartz, whose referral letter indicated his support for a combined orthognathic/orthodontic treatment approach as the "ideal" one. I note, however, that in his referral letter he stated "Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved". I take that to indicate that there were other options, but it does not reflect whether the availability of other options short of the plans that were proposed as the "ideal treatment plan", but other than one he called "the simplest" plan, were canvassed with the plaintiff. Nevertheless, Dr Schwartz’s evidence still supported the appropriateness of a combined surgical and orthodontic approach, as he had recommended, and for which he provided the orthodontic treatment throughout.20. Dr Bruce Taylor, an experienced orthodontist, was retained by the defendant’s solicitors to provide an opinion on the appropriateness of the treatment plan, and examined the plaintiff late last year. He said he had "no doubt" that the treatment plan was appropriate and "whilst I acknowledge the view other treatment options may have been explored, the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice". He did not see the plaintiffs age as a contra-indication for this approach and said in his experience of over 20 years in orthodontics, many patients had been treated successfully without complication of greater age than this patient. In cross-examination he agreed that in any area of medicine the recovery rates in older people may not be as great as in younger people, and that smoking and higher age increased the level of risk in orthognathic surgery.21. Dr Taylor said discussion of options by a dentist may well have included talk about partial dentures and palliative care for the angular cheilitis. He said "The objective of partial dentures would be to add to the biting ability and to open the jaw or widen the opening, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice one would suggest it was really camouflaging the problem, rather than treating the root of the problem, which essentially was the foreshortened lower jaw". He said treatment with a partial denture is diminishing these days, and bringing the jaw forward would improve the efficacy of a partial denture, even if implants were not to be done to replace the missing teeth.22. He agreed that a displacement appliance could be used as a diagnostic tool to see whether shifting the lower jaw would improve pain levels, "but is not a definitive treatment, nor will it address the problems associated with aesthetics". He agreed that if it did not improve the pain, that would reduce the reason for performing the surgery other than for aesthetics. He said it was most unusual these days to use such a splint and was not something that was routinely done, and by "these days" he included 1997. He was under the impression that facial aesthetics were a motivating factor in the plaintiff seeking treatment.23. Dr Taylor acknowledged that there were other possibilities that could be tried, but said "It is not, if you like, the ideal in terms of a technical point of view in
  5. 5. producing the best possible bite". The benefit from what he called the definitive way to correct her presenting problem, if it had gone as expected, would be that she would have had a far better occlusion, a better ability to eat, better aesthetics, whether she wished for them or not, it would be highly likely to have cleared up her angular cheilitis "and there would be a good chance that it would address the problem of her pain".24. The defendant also relied on the expert opinion of oral and maxillofacial surgeon, Associate Professor Robert Jones of the University of Adelaide, whose reports were tendered without his being required to attend for cross- examination. He did not examine the plaintiff for his original opinion on the appropriateness of the treatment plan, but did examine her in Melbourne early this year for a further opinion.25. Associate Professor Jones’ opinion was that the treatment plan was appropriate for the plaintiff with her presenting problems, which he originally understood to include concern about her facial appearance. He states that the mechanical treatment of skeletal Class II occlusions in this way helps support temporomandibular joints, although it could not be guaranteed to cure the facial pain, and it would help treat the angular cheilitis perhaps in conjunction with antifungal medications. He did not believe her age was a contra-indication to jaw corrective surgery, but agreed that the incidence of problems with surgery is increased in patients older than 40 over younger patients. He said that does not mean patients over the age of 40 should not have this type of surgery provided these problems are discussed beforehand. His own verbal information to patients includes that the risk of permanent numbness to the lip is higher in older patients. His mention of the chances of non-union is that it is extremely low, and his standard warning does not relate that risk to age.26. His reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks.27. Mr Jones maintained his opinion that the treatment plan was the best chance of curing her problems, despite its unfortunate outcome, after he examined her in January 2007.28. The plaintiff relied upon the expert opinion of Professor David, an oral and maxillo-facial surgeon, whose approach as head of the Australian Craniofacial Unit in Adelaide would, he said, be to treat a patient such as Mrs Paterno by having her seen by various members of a team of specialists, including an orthodontist, but also speech pathologist and social worker if surgery to change facial structure were to be contemplated. He had her assessed by such a team in order to give the medico-legal opinion sought from him by the plaintiff’s solicitors.29. Professor David’s view was that in a woman of Mrs Paternos age, there was a higher than normal risk of non-union of bone and associated complications such as nerve damage in performing a sagittal split osteotomy and, for that reason, it is unlikely that he and his team would offer a woman of her age with her condition this solution for her facial discomfort. He said that the presenting complaint of pain could be treated with the trial of a splint to raise the space between jaws vertically, and that would ascertain whether the complaint of pain was due to the temporomandibular joint, a proposition of which he was not convinced.30. As part of Professor Davids team, the plaintiff was examined by Dr Michael Nugent, an experienced orthodontist. He said that it would be unusual for him to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late 40s because at that age the risk of complications following surgery to the mandible is high. In such cases he would recommend the most conservative program to restore the occlusal function, which would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).31. Mr Ian Carlisle, an experienced plastic surgeon who also has training in dentistry, and specialises in oral and facial surgery, gave evidence both as to
  6. 6. his treatment of the plaintiff on referral by Mr Hookey, and also as to issues relevant to the appropriateness of the treatment. He said that in his experience, this sort of orthognathic surgery would only be performed for pain or for cosmetic reasons. If it were for pain, you would want to try to establish whether the surgery was likely to relieve the pain, and in those circumstances it would not be uncommon to have a bite raising appliance made and worn for some months. If it did not improve the pain "a lot", it would be his view that one would probably not proceed with the surgery.32. A further factual issue going to the appropriateness of the treatment plan emerged during the hearing. In his oral evidence, Mr Hookey said that both then and now it has been his firm policy not to perform tooth implants on patients who are smokers. He said the reason for this is that there is too high a failure rate - of between 15% to 20% - in smokers. This was not specifically pleaded in the statement of claim, for which reason the defendants counsel urges that it should not be entertained at all.33. I am satisfied that the reason that this had not been pleaded was that it was unknown to the plaintiff or her lawyers until it emerged during the hearing. It had not previously been mentioned in any of the defendant’s pre-trial documents, including a relevant answer to interrogatory, was not mentioned in any of the defendant’s medical experts’ reports as being part of their instructions, nor in any discovered documents that were in evidence. Mr Hookey said that he told the plaintiff this at the first consultation, but later said that it was contained in an information brochure she was given. I can see no mention of it in any of the information sheets he claims to have given her - those she acknowledges receiving or those she did not recall receiving but he said were by practice handed out by his receptionist. When the proposition was put to the plaintiff in cross-examination that Mr Hookey had told her that his policy was not to perform implants on smokers, her answer was: "That’s what I went to see him for, for the implant". The defendant’s counsel argues that this was a non-responsive answer to the question; it was, but my impression at the time was that it was spontaneous, reflected genuine surprise without opportunity for reconstruction, and was truthful.34. Not only did the treatment plan Mr Hookey recommended include implants, so did his quotation for the cost of his parts of the treatment, and his own treatment card sleeve for her notes prominently "Implants/Orthog". This was said to have been filled out by his staff on his instructions on the day of the first consultation, when she told him and he noted that she smoked.35. I am satisfied that all of this evidence indicates that implants were an intended part of her treatment plan. Indeed, the suggestion of Dr Schwartz had been for the implants to be the first step, and then used as anchors for the orthodontics. Mr Hookey’s reason for disagreeing and preferring to leave them until last was said to be primarily because the implants could move or be displaced during the surgical stages. There is no mention in the letter to Drs Schwartz and Romano that he would not do the implants if Mrs Paterno continued smoking. Nor is there any suggestion in the defendants own oral evidence or his treatment cards that he thought it relevant to check with her or remind her along the way, that she should be giving up smoking if she wanted the implants as the end result.36. I am satisfied that Mr Hookey never told Mrs Paterno that it was his policy not to do implants on smokers, and would not do them for her unless she stopped smoking. I doubt that this was in fact his policy. However, if it were, it would in my view be enough of itself to indicate that the entire treatment plan was inappropriate for her because it was to be undertaken without ascertaining whether its final stage was likely to be achievable, i.e. without establishing that she even intended to try to stop smoking.37. Assuming that it was not in fact Mr Hookey’s policy not to perform implants on a smoker, I have reached the view that it was not necessary for this aspect of the inappropriateness of the treatment plan to have been specifically pleaded for Mr Hookey’s evidence about it to be taken into account as relevant. In my view, it goes to the more general proposition of
  7. 7. the appropriateness of the treatment plan including surgery for this patient. It is an implicit acknowledgement by the defendant that the fact of her being a smoker increased the risk of failure of at least one stage of the treatment plan, a stage which in lay terms was the part she wanted, the replacement of missing teeth to improve her chewing ability and lift or support her upper back jaw.38. The defendant argues that the allegation of an inappropriate treatment plan is to be assessed in light of the distinction made in the authorities between whether the alleged negligence is in diagnosis and treatment on the one hand, or in the provision of information to the patient to enable informed consent on the other. It is said that the appropriateness of the treatment plan in this case falls into the category of diagnosis and treatment, and for that, the decision as to the requisite standard of care will rely heavily, if not entirely, upon professional opinion as compared with it falling to the Court to determine what standard should be expected from the medical profession in the provision of information and advice to the patient.39. The current case is not one of misdiagnosis - all of the professional opinion indicates that Mrs Paterno had a Class II, Division II malocclusion. Whether that was the cause of the facial pain, which was one of her presenting symptoms, is less certain - Professor David doubted it, and most other opinion, including that of Mr Hookey, was that the combined surgical orthodontic treatment being recommended would not necessarily eliminate that pain. That the malocclusion was the cause of her angular cheilitis was not disputed, but all of the medical and dental opinion was to the effect that surgical intervention for angular cheilitis alone was not warranted.40. As to what was reasonable to recommend as treatment, there is a division of opinion between one body of professionals, including Mr Hookey and Drs Schwartz and Taylor and Associate Professor Jones, as opposed to that of Professor David, and Dr Nugent. It is not for a court to decide whether it is appropriate or preferable to have consultation about a patient by a team consisting of a dentist, orthodontist and oral surgeon, or one consisting of an orthodontist, oral surgeon, speech therapist and psychologist. It seems to me that those issues together with the technicalities of diagnosis and performance of treatment are what have been said to be issues on which courts will rely largely if not entirely on professional opinion.41. I am satisfied from the evidence outlined that the treatment plan was technically the optimal way to create a normal occlusion in the plaintiff’s mouth. However, I am also satisfied that the decision to recommend it did not adequately take into account its suitability for her in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances.42. So far as alleged negligence in recommending treatment is concerned, professional knowledge in the field is clearly predominant to identify available treatment options. However, I do not understand that to mean that the question as to whether an appropriate standard of care has been met in a particular case, that depends solely on whether the treatment offered or recommended is in accordance with what a respectable body of other professional opinion says was appropriate to offer. The reason is the same as the basis for the courts rather than professionals deciding whether adequate information or warnings have been given - as summarised by Gummow J - "Except in cases of emergency or necessity, all medical treatment is preceded by the patients choice to undergo it. In legal terms, the patients consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice". It seems to me that the appropriateness of recommendations as to treatment must, once the technical options are identified by professional opinion, be judged in light of the particular circumstances of the patient. Those circumstances would include a weighing of the nature of the treatment including its intrusiveness, its risk factors,
  8. 8. against the nature and severity of the presenting problems which the treatment is aimed to resolve, and its prospects of doing so.43. None of the professional opinion in this case suggests that angular cheilitis alone warranted the surgery. It could be treated with topical anti-fungal cream and, although it was likely to recur if structural change to the plaintiffs mouth were not undertaken, the presenting symptoms of angular cheilitis were simply too minor to have warranted such substantial surgery.44. As Mrs Paterno did not seek treatment for cosmetic reasons, any potential aesthetic improvement which the professionals might have anticipated is entirely irrelevant as a justification for it. As it eventuated, the result of the surgery to Mrs Paterno has been a much worse aesthetic effect to her whole face, permanent asymmetry as well as scarring, a prospect of which she patently was not warned at all.45. While recognising that the totality of presenting symptoms is essential to recommendations for appropriate treatment, the predominant reasons to recommend the treatment, therefore must have been to improve her biting and chewing ability, and to relieve her pain. Albeit with hindsight, she described the severity of the pain as not even up to one on a scale of 1 to 10 - just a discomfort and feeling that something was not right, and not constant. The consensus is that alleviation of the pain was not guaranteed by the surgery in any event. Despite Dr Taylors and Mr Hookey’s evidence, I am satisfied by the evidence of both Professor David and Mr Carlisle that the trial of a splint device for some months to see whether creating more vertical height would relieve the pain was a more appropriate approach before recommending surgery of this extent if such surgery were aimed at alleviating the presenting pain which at most was of a very moderate level.46. As to the purpose of correcting or improving Mrs Paternos ability to bite and chew, I am satisfied that, without the orthognathic surgery, alternative methods of improving her bite were not without limitations or downsides. Partial dentures were mentioned in evidence as possible, but described as outdated dentistry by Dr Taylor, with some discomfort, and Mr Hookey said that the lack of space in Mrs Paterno’s mouth would have limited their effectiveness. The use of implants alone was said by Mr Hookey to be impractical because of a lack of vertical height allowing access to place them in her limited jaw space. On the evidence, it does not appear that any of these were even mentioned to Mrs Paterno - the only apparent alternative discussed being the "simplest plan" of orthodontically pulling the upper front teeth back, mentioned but dismissed by Dr Schwartz .47. Also relevant to the recommendation of treatment were the factors that increased the standard risks of those procedures in her case, namely, her age and her smoking habit, which I am satisfied increased the risk of her jaws not healing satisfactorily, as well as the risk of permanent nerve damage.48. The seriousness of the presenting condition and its likely future, including any potential deterioration in the patients health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.49. The defendants counsel urges that I infer from the fact that Mrs Paterno did agree to the treatment plan, knowing what it included, that she must have been considerably troubled by her presenting complaints. Her evidence does reflect that she was told about each step, and I accept that by agreeing to it
  9. 9. she must have been willing to undergo considerable and protracted and expensive discomfort. However her agreement to it presupposes not only that its risks were adequately explained, but that she was adequately advised that she had other options, including of doing nothing.50. In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orthodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks. Further, if it were Mr Hookeys opinion that there was a high risk of implants not being successful if the plaintiff remained a smoker, it was, in my view, an even less appropriate treatment plan to recommend. Was the plaintiff adequately warned of the risks?51. A doctor has a duty to warn a patient of all material risks inherent in the proposed treatment; a risk being material if in the circumstances of the particular case a reasonable person in the patient’s position if warned of it would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. In the present case, the specific allegation is that there was failure to warn of what are alleged to be the "high risks" of non-union of bone, and of nerve damage. The defendant concedes that if any risk which caused her injury can be called a "high" risk, then it would necessarily be a material risk.52. The allegation that there was negligence in failure to warn of the risks of the treatment requires as a first step identification of what risks may have required a warning by reference to what risk or risks eventuated, or what was the cause of injury to the plaintiff. There must then be consideration of whether those are risks of which warning ought to have been given, and if so whether adequate warning was in fact given of those risks.53. The defendant argues that the case fails at the first step, and does not even get so far as consideration of whether there were adequate warnings of those risks, because the evidence does not establish that the injuries suffered by the plaintiff and, in particular, the chronic severe pain in her jaw which has been central to her continued suffering, were caused either by non-union of bone or by nerve damage.54. While I agree that the evidence does not support that Mrs Paterno’s chronic ongoing jaw pain was caused by the non-union of bone, I am satisfied that she has suffered significant injury as a result of it. It is clear that there was in fact non-union of bone on both the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a "bucket handle" effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.55. In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.56. Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe mercindol forte for it, noting that the general condition of the post operative jaw was "settling" by which he says he was not referring specifically to pain but the overall
  10. 10. operation result. By early November had decided to schedule a reopening of the right split site, as a result of her continuing complaints of pain.57. Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and the numbness respectively.58. Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hookey or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.59. Mr Ian Carlisle believed that there had been damage to the inferior alveolar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the non-union was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said "any nerve that ‘s been damaged can go on and perform and behave in a way that can cause unremitting pain". He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.60. A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff’s pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage. I note that despite Mr Carlisle’s protracted attempts to alleviate her ongoing pain without success, he still said that he had always believed her complaints of pain to be genuine. In my view Mr Carlisle was in a better position to assess the plaintiff’s condition over a considerable period of time, and in this case I would accept his view on the likelihood of nerve damage over that of Dr White, despite his area of specialty, especially as it is supported by the opinions of both parties’ "expert" maxillo-facial surgeons.61. I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paternos jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injections such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve caused in the original surgery.62. Having identified that non-union of bone and nerve damage were each injuries to the plaintiff caused in this surgery, the next question is whether those eventualities were "high risks" associated with it in her circumstances.63. The eventuality of non-union of bone appears on the evidence to be a rare consequence of this operation. Mr Hookey stated that he had never known it to occur before. Both Mr Jones and Mr Carlisle acknowledged it to be a
  11. 11. known possible consequence of which they would give patients warning, although they confirmed that it was very rare. Although Mr Jones own warnings to patients do not specifically detail any increased risk of non-union as a result of age, he accepted that age increases the risks of this surgery. Mr Carlisle said there was no question that age increases the technical difficulties in performing the operation. Dr Turner conceded that in principle age increases the risk of the non-healing of bones. While Mr Hookey still knows of no other instances from the plaintiffs, it is a risk of which he now says he ought to warn.64. If the question were whether the risk of non-union of bone was a material risk inherent in the proposed treatment, I am satisfied that it was, and therefore that warning ought to have been given of it. That is because in my view it is a different risk from the risk of malunion, which most of the witnesses acknowledged ought to be the subject of a warning. The defendants counsel argued that the consequence of non-union was really the same as that of malunion, being the need for further corrective surgery. In my view, the risk was and is different, as in fact proved to be the case with Mrs Paterno. The risk of mal-union is that, while the process of the bone uniting occurs, it does so leaving the bone aligned in the wrong position. Such a situation has the consequence of further surgery being needed (if the misalignment is to be corrected), with the risks that any further surgery would involve, but with the prospect that the patients bones would ultimately re-unite. When the problem is non-union, further surgery with attendant risks is the likely consequence, but in circumstances where the patients propensity to have her bones naturally heal and re-unite is diminished and, as occurred in the plaintiffs case, it may be necessary to engage in more extensive and more serious surgery such as bone grafts to ultimately achieve union of the bone, whether in the appropriate position or not.65. The statement of claim, however, only alleges a failure to warn of "high risks" attributing that description to the risk of non-union of bone. On the evidence in this case I am unable to find that that was a high risk due to its extremely rare incidence, even after allowing that it was greater than for an average patient due to the plaintiffs age and being a smoker. I would only find non- union to be a "high risk" if in combination with other risks or even if in combination only with that of nerve damage. Accordingly, although I am satisfied that Mr Hookey did not in fact tell Mrs Paterno that there was a risk of non-union, I am not satisfied that it could separately be called a "high risk" of which he ought to have warned in itself. In light of my finding about the risk of nerve damage alone, however, the finding as to non-union does not prevent the consequences of it being taken into account if the defendant failed to adequately warn of nerve damage and the operation would not have occurred if he had.66. So far as the risk of nerve damage was concerned, ultimately the defendant conceded that the description "high risk" of nerve damage applied in Mrs Paternos case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage. Mr Masel argued, however, that such nerve damage could be expected to cause permanent numbness or diminished sensation, whereas the consequence of severe hyperaesthesia is most unusual, and did not require mention or warning to the patient. To this, the plaintiffs argument is that it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage. I am satisfied that it is appropriate to address the question in that way, and I am therefore satisfied that in order to fulfil his duty of care, it was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk of her being left with permanent nerve damage as a result of the second operation.
  12. 12. 67. Taking into account of the evidence including that of of Mr Jones and Mr Carlisle as to what they would explain to a patient in such circumstances, I am satisfied that a warning to Mrs Paterno was required which informed her that there is a percentage of patients for whom the effects of nerve damage is permanent, that the risk to her of this occurring was higher because of her age and additionally because she was a smoker, and that although usually nerve damage from this operation resulted in numbness or similar change in sensation, nerves can always react by causing pain.68. The next question must be whether the warnings actually given were sufficient.69. There is considerable dispute as to what exactly occurred and was said during the first consultation on 4 April 1997. Although its details are extensive in the evidence, and help define the credibility and reliability of both parties, there are ultimately very few factual issues to decide on whether adequate warnings as to the risk of permanent nerve damage were given by Mr Hookey to Mrs Paterno.70. In general, I have considerable reservations about the reliability of the evidence of either Mrs Paterno or Mr Hookey. The hearing of this case extended over some weeks, and was very stressful for each of them. Each of them spent many days (with some interruption for interposed witnesses) in the witness box, being questioned by experienced barristers asking them to recall events which both of them sincerely wish had never occurred. The critical events occurred ten years ago. It was clearly very stressful and distressing for Mrs Paterno to re-travel in detail all that has occurred over the last ten years, being reminded of her life before the treatment began, and the effects of her subsequent suffering not only on herself but on her husband and children. It was clearly stressful for Mr Hookey to have his professional judgment and skills questioned and examined by other professionals, especially as they have the benefit of hindsight. I take all of this into account in assessing both the credibility and reliability of each of the parties as witnesses.71. In making findings on this issue, I have taken into account not only that the passage of time has inevitably affected each witnesss version of events, but also that they have each inevitably reconstructed memory to a considerable extent. From the plaintiffs point of view, there is almost inevitably an aspect to her recollection of believing that if certain matters had been said, she would have recalled them. She has undergone much distress, and is suffering the effects of strong medication which also must affect her memory and her ability to concentrate during extended and detailed questioning. As to Mr Hookeys recollection, I conclude and, indeed, he admits, that he has very little direct recollection of what was actually said at various consultations with Mrs Paterno. I conclude that his version of what was said during each consultation was almost entirely reconstructed, in part from what his usual practice was, in part from his notes and contemporaneous correspondence, and in part having had the opportunity to hear or read the views of many other doctors subsequently asked to give their views. What he provided as a "transcription" of his notes was clearly not mere transcription but extensive reconstruction, and the preparation of that in itself could well have blurred any chance of his knowing now what actually was said at the relevant consultations.72. Turning to whether the defendant in fact adequately warned the plaintiff of the high risk of nerve damage with permanent consequences to her, the plaintiff says that he did not warn her of the risk of permanent nerve damage at any time prior to the sagittal split osteotomy on 16 July 1998, whether in the initial consultation where he says it occurred, in brochures, or when she returned to embark on that stage of the treatment on 30 May 1998. She said she had been told that there could be pain just after the operation, but that she would be given pain relief. She was told the lip might be numb for a while, but she would regain that sensation after a few days, but he did not mention the
  13. 13. trigeminal nerve or nerve pain or any percentage of the risk of short term or long term damage to the nerves.73. The defendant said in his oral evidence that he told the plaintiff by demonstrating on a model skull the passage of the nerve through the mandible, that in 95% of cases the nerve is injured with the operation, that it is a feeling nerve to your lip and chin and you must expect to feel numb in your teeth and in your lip and chin after the operation, that it is a frustrating feeling, but generally recovers over a 12 month period and the sensation is like having a foot recover from pins and needles over an extended period. He said he told her that one in ten patients will still be numb at the end of 12 months and, beyond that, recovery of significance was not expected. He also said that it was his practice to hand out information brochures on orthognathic and jaw surgery at the first consultation, this being done by his receptionist. There was some uncertainty about which version of these prevailed at the relevant time, and Mrs Paterno denied that she received them at the initial consultation. If she was given them, the tendered versions so far as could be relevant state: "Pain Usually patients do not require strong analgesics(pain control medication) following jaw surgery, but appropriate analgesics are prescribed when necessary both when you are in the hospital and after your discharge" "Complications …. Damage to the nerve in the lower jaw which supplies sensation to the lower lip can occur and this can lead to a feeling of numbness in the lower lip. This is usually only transitory in nature…." In my view neither of these was sufficient to inform a patient of any risk of long term pain, nor that risk of sensory consequences from nerve damage could be permanent and was at least 5%, and higher in people in certain categories.74. In answer to a relevant interrogatory, the reference to details of his warning as to nerve damage was limited to "There is a risk of nerve damage". If this were the limit of what he said it made no differentiation as between temporary and permanent damage, nor the level of risk to the plaintiff75. Mr Hookey admits that he does not have a direct memory of most of the specifics of what he said to Mrs Paternoo, and that what he said in evidence was largely based on what it is his usual practice to say. Further, he said that he does not, as a habit, use percentages in discussing with patients the number of them who would get numbness, as he feels that it is more meaningful to say one in ten or one in twenty. He agreed that in combination the plaintiffs age and her smoking made this risk higher, but he said he did not tell her that specifically as he does not like to risk offending patients, so he says he factored into the figures he used her age, but it would seem not her smoking. His transcription of his notes, it eventuated, was not a direct transcription and he had no recollection of some of the detail as to warnings which it included.76. Also present at the first consultation was Dr Romano. His evidence is that the defendant did not warn the plaintiff of the risk of permanent nerve damage at the first consultation. Without analysing all of its details, I decline to give much weight to Dr Romanos evidence about these matters because, in my view, his perception of the events is also heavily influenced by hindsight, there has clearly been an acrimonious falling out between him and Mr Hookey in the meantime, and in my view his evidence is also probably influenced by his knowledge that he was a part of the events that took Mrs
  14. 14. Paterno to Mr Hookey and that he encouraged her to have confidence in Mr Hookeys advice and recommendations.77. Mr Hookey concedes that he did not explain to the plaintiff that her age or being a smoker increased the risk of her suffering nerve damage as a result of this operation, and he concedes that there was in her circumstances a high risk of that. Even were I to accept his version of what was said – and I do not in its entirety because it is so very heavily reliant on reconstruction - his explanation of the likely consequences or symptoms from nerve damage, in my view, significantly underrated them, even though severe pain is not a common result. To compare permanent nerve damage as being like pins and needles in ones foot in the long term, in my view, significantly underrated the significance of the long-term effects of nerve damage, even if they were more likely to be altered sensation than chronic pain. Again in the context of the presenting problems for which the operation was being undertaken, I consider that there was inadequate warning of the risk of the consequences of nerve damage and permanent symptoms from it. Would the plaintiff have refused the treatment if adequately warned?78. The final crucial question on liability is whether I can be satisfied on the balance of probabilities that, if adequately warned of the risk of permanent nerve damage, Mrs Paterno would have refused the treatment plan.79. The plaintiff says that if she had known that there was a high risk of permanent nerve damage, she would not have agreed to the treatment. She was wary having never heard of this operation before, and she says she felt that Mr Hookey was overly confident in his discussion with her, but was reassured by Dr Romano’s confidence in him. Her evidence in this regard is inevitably given through what has often been called the "prism of hindsight". It is therefore appropriate to look at other evidence that might help to objectively assess what her subjective decision whether to have the treatment is likely to have been if she had been adequately informed or warned of the risks of the treatment.80. On this issue the defendant calls in aid evidence as to previous surgery undergone by the plaintiff. She had a left stapedectomy in approximately 1997. She was in her late 20s, and after the birth of her third child she had noticed herself losing hearing in both ears, but particularly on the left. She said she had been advised that she was likely to become totally deaf in the left ear if she did not have this operation. The defendant called retired ENT surgeon and consultant, Mr Hugh Millar. Unsurprisingly, Mr Millar had no personal recollection of Mrs Paterno and he had not been able to find his records of treating her. He confirmed that the operation would have been to avert permanent likely deafness in her left ear. He said that in those days they did not inform patients much about risks and it is likely he would just have told her the percentage chances of the operation succeeding, which he said were approximately 80%. In my view, this evidence did not advance the defendants case at all. I see no similarity between the circumstances of accepting that advice and undergoing Mr Hookeys treatment plan.81. The defendant also called Dr Graeme Dennerstein, the plaintiffs gynaecologist, who confirmed treating her in late 1991 and early 1992 when her presenting problems were prolonged and heavy bleeding and pain during her periods. He advised and carried out a laparoscopy, and told her that she could either undergo a hysterectomy at that stage or wait until after menopause (she was then aged 41). Although the defendant pointed to some divergence between the plaintiffs recollection of it being two to three months later with ongoing pain and prolonged heavy bleeding that she returned to Dr Dennerstein, whereas his notes indicated it was more like six weeks later, Dr Dennersteins evidence was that when she returned in January 1992, although she was happy with less bleeding and pain, he found her uterus to be enlarged to the equivalent of a ten week pregnancy by a significant sized fibroid. This led to his recommending a hysterectomy at that stage, which it
  15. 15. was his view was required. I am satisfied that the considerations involved in agreeing to that surgery were of considerably more pressing importance than the symptoms and presenting problems that sent her to her dentist and eventually to Mr Hookey.82. I also take into account that Mrs Paterno has consented to a number of subsequent operations and other forms of treatment. The five remedial operations on her jaw, as well as such treatments as the hyperbaric chamber and ketamine infusions, are indicative that she has been prepared to accept many forms of recommended treatment notwithstanding that they may have serious consequences, although the extent of warnings and explanations she has been given is unclear. The dire circumstances in which she found herself after Mr Hookeys second operation can be seen as influencing her to try whatever was recommended, at first out of faith that there would be significant cure for her difficulties and ultimately out of desperation to find some relief from her chronic pain. Having heard her and her husband’s evidence I am satisfied that this is the more likely inference to draw than that she would accept any recommended treatment for any complaint.83. The strongest argument for the defendant that the plaintiff would have undergone the treatment even if more fully advised about the risks of nerve damage, is that she was apparently prepared to agree to the five step plan which, in itself, was to involve protracted discomfort and expense over an 18 months to two year period. That, however, presupposes that she was adequately advised of the extent of that discomfort and the risks attached.84. My impression of Mrs Paterno is that she is a sensible woman of reasonable intelligence who was, however, heavily reliant upon the advice of the professionals she consulted. I am satisfied that between the faith expressed in Mr Hookeys ability by Dr Romano, the support for the plan from Dr Schwartz, and the confidence of Mr Hookey himself and his talk of his previous successes with the surgery, the force of Mr Hookeys optimism is what encouraged her to agree to the plan. I am satisfied that, had the nature of the operations been more adequately explained, in particular the high risk of permanent nerve damage, she would not have agreed to proceed.85. This is in addition to my finding that it was not appropriate to have recommended the surgery to her at all, even with more fulsome explanation of the risk of nerve damage. Damages86. There is no dispute that Mrs Paterno has undergone extensive remedial treatment and that no further surgery is likely to improve the current state of her mouth and jaw. She has been left with permanent cosmetic consequences of scarring on her neck, from Mr Carlisle’s remedial surgery which required access to both sides of the jaw through the skin, and a misaligned lower jaw so that her face is asymmetrical, and noticeably extended on the right hand side. She has a distorted bite, although two crowned implants on each of the left and right rear lower jaws are satisfactory in restoring some chewing ability. She has some sensory loss to her lower lip on the left side. On the right, she is still suffering chronic pain on the outer jaw, and associated neck pain.87. She takes large quantities of a variety of medications, and in particular is now dependent on opiate-based pain relief. This has had the consequence of serious bowel problems, for which she has described at least two periods of previous hospitalisation and in respect of which further surgery is apparently contemplated.88. The interplay of medication for those conditions has distressing consequences in her daily living. The effect of the morphine has significant consequences on her concentration and probably is also connected with some of her oral disabilities, when her tongue becomes caught and words are slurred and the right side of her mouth, especially the lower lip, sags.
  16. 16. 89. There is dispute as to whether the plaintiff is also suffering psychologically. Her treating psychiatrist, Dr Lavoipierre - who is also coordinating treatment as part of his specialising in pain management - diagnoses her to be suffering depression and anxiety and prescribes medication for those. Dr Michael Epstein examined her for medico-legal purposes, and diagnoses a major depressive disorder as a result of the chronic pain discomfort and disability from her jaw surgery. His opinion is that she will continue to need psychiatric treatment on a regular basis, at least monthly intervals, and considers her prognosis poor, with it being unlikely that psychiatric treatment would lead to improvement, but may prevent further deterioration. He confirmed that view on reviewing her in February 2007.90. The defendant relies on a report by Dr Alan Jager, who examined her in December 2006 and concluded that she has either a dysthymic disorder or a chronic major depressive disorder in partial remission. He noted that her mood was currently reasonable and she was able to enjoy some aspects of life, but has insomnia and impaired concentration and libido, noting she was taking anti-depressants and sedatives. He noted her movements to be slow and a very slow thought stream, and that she sat hunched over and bent forward with downcast gaze and furrowed brow. He felt it likely that she fulfilled the diagnostic criteria for a major depressive episode in the past, but did not currently fulfil those and her long-term depressive illness dating from 1998 was in partial remission as a consequence of her treatment by Dr Lavoipierre. In his view her psychiatric condition arose as a consequence of the pain and disfigurement caused by the failed surgery, and that she had responded quite well to treatment with anti-depressant medication which was then currently at a modest dosage. He noted the sedative effect of medication. He thought it unlikely she would achieve a full remission of her psychiatric condition.91. The defendant relied on the evidence of Associate Professor Peter J. Doherty, a consultant psychiatrist from the Melbourne Clinic, who was of the view that she does not have any compounding or secondary psychiatric illness to her major problem of pain, which he notes is not a psychiatric condition. He discounted the prospect of her suffering depression because it was his firm view that a person who took such care as she obviously did with her dressing and presentation, did not fulfil the criteria for suffering a depressive illness. He attributed her problems to the "sick role" he thought induced and perpetuated by her treatment regime and the attitude of those around her. He believed however that she required psychiatric and psychological intervention in order to minimise the secondary effects of her current treatment, that is, the disabling effects of medications prescribed.92. Although not a psychiatrist by training, I note that Dr Jane Trinca whose approach as a pain management specialist is towards extracting patients with chronic pain from their "sick role", in commenting on Dr Doherty’s report stated that on her examination of the plaintiff she was a little tearful, had some lowered mood, and that the history of sleep disturbance and lowered activity is consistent with both medications and adjustment response to her chronic medical condition.93. I am not convinced by Associate Professor Doherty’s reasoning that care in dressing in itself excludes the diagnosis of clinical depression. In the context of chronic problems from the jaw surgery, and in light of the overall psychiatric evidence, I am satisfied that the plaintiff has suffered from a major mood disorder which has been controlled and prevented from deteriorating by psychiatric treatment. I am also satisfied that without ongoing psychiatric medication and support her psychiatric state is likely to deteriorate.94. The main issue in relation to both general and special damages is whether her current situation and level of disability is likely to be permanent, or whether some or all of the debilitating effects of her heavy medication might be relieved or eliminated, enabling her to become reconditioned to daily activities in and outside her home, thereby improving her quality of life. This issue centres primarily around whether a sophisticated pain management
  17. 17. programme is likely to succeed in removing her very heavy dependence on opiates in the long-term, with the consequence of also relieving some if not all of the severe bowel complications they have caused. General damages95. At the time she first consulted Mr Hookey, Mrs Paterno was aged 47, leading a busy social and domestic life. She was a much admired and vibrant force in her family, with her two sons still living at home and a husband actively engaged in his businesses, especially the reception centre, and in his Italian club of which he was President. Her children were reaching adulthood and her daughter had moved out of home but remained close to the family. From descriptions by her husband and her daughter Susan, I accept that she was a very vivacious and outgoing person who was, as described by her daughter "the life of the party at events", who was very creative and artistic, taking great pleasure in creating special events, entertaining visitors including her childrens friends, and preparing parties for their major birthdays and milestones. She took great pride in her appearance and, as was commented on by many witnesses, she still does. Her daughter describes her previously as being up-to-date with fashion and dressing flamboyantly. I have seen photos, and viewed brief video footage of her apparently taken about a month before her first surgery from which she looks as beautiful as her husband describes her, glamorously dressed and presented and, indeed, showing great vivacity and enjoyment of the occasion.96. She was, however, experiencing some facial pain which was not constant, but enough for her to have consulted her general practitioner. She was also experiencing angular cheilitis, a condition causing red marks and soreness at the corners of her mouth resulting from constant moisture caught in the overlap of skin. This, she was able to mask with make-up, but it would have required topical cream as it was likely to recur. She was also experiencing some problems with chewing and biting, and this combination of symptoms is what led her to consult the familys dentist when her husband had an appointment.97. The first stages of the treatment plan devised by Drs Schwartz and Hookey proceeded without significant complication and although the plaintiffs case is that had the defendant not been negligent she would not have undertaken any of this treatment, I make only minimall allowance in assessing damages for what pain and discomfort she suffered during the first 14 months of the treatment plan, that is, until after the second operation performed by the defendant, the sagittal split osteotomy on 16 July 1998. As she had been warned to expect following that operation, she found herself in pain and discomfort, with a swollen mouth restrained by bands and greatly restricted eating. She had been warned of and accepted these effects, and I give them only minimal weight in assessing her damages. Of themselves they were temporary and much less distressing than what followed.98. Very soon after the initial swelling and effect of local anaesthetic abated, she noticed what she describes as burning pain on the right side of her lower jaw. She also describes there being swelling like a lump on the right side. The pain continued, although I take it to have fluctuated to an extent over the next few months. Although Mr Hookey had not regarded it as significant initially, he did prescribe Mersyndol Forte, he says at her request. By December 1998 he considered the ongoing pain warranted his operating to remove the titanium plate and screws on the right side. This was the first remedial operation performed, at Epworth Hospital, under general anaesthetic. Next, a further tooth was removed because it was impacting on the tender lower gum on the right. Three months later, the one remaining lower molar on the right was removed, as it was suspected of sepsis causing the ongoing pain, as part of a further remedial operation performed by Mr Hookey on 30 March 1999 when he removed a loose piece of bone and cleaned out the ununited
  18. 18. ends of the bone on the right side and inserted new titanium plates. To facilitate the March 1999 surgery, Mr Hookey referred the plaintiff for hyperbaric treatment at the Alfred Hospital Hyperbaric Unit. She underwent tests for her suitability there and, although the Hyperbaric Unit Registrar, Dr Leong, considered the tests showed no confirmation of osteomyelitis, she was given the treatment to increase blood flow to assist in the healing of the bones. In total, she underwent the equivalent of 29 "dives", the surgery being performed approximately half way through it. She described this treatment as "terrible" and she needed to take a Valium before it. Histopathology reports after the surgery did not confirm osteomyelitis.99. Meanwhile, she had sought medical treatment for depression, and was prescribed anti-depressants in late December 1998.100.Following the surgery at Easter time 1999, the defendant reassured Mr Paterno that he had found osteomyelitis, cleaned out the area and was hopeful that all would be well from there on. However, Mrs Paterno continued to experience burning pain on her right jaw. Opiates continued to be prescribed for the pain. Meanwhile, the orthodontic work continued. In October 1999 Mr Hookey referred her for further opinion to Mr Ian Carlisle, plastic surgeon (who also had dental qualifications). Mr Carlisle diagnosed non-union of bone on both sides of the mandible. In conjunction with Mr John Redman, another maxillofacial surgeon, he recommended surgery involving bone grafts to re-unite the lower jaw. On 18 December 1999, she underwent this surgery with the graft taken from her right hip, and she describes complications in hospital immediately afterwards, as well as severe pain and distress from this operation, including pain at the graft site. In the course of time, that operation was found to have successfully re-united her jaw, although it was unable to be set in ideal position and left her with a structurally asymmetrical jaw.101.Shortly before she underwent the graft surgery, in distress at her condition, Mrs Paterno had taken an overdose of medication. She was admitted to John Fawkner Hospital as a result. Although that incident was clearly extremely distressing to her family and her at the time, and, indeed, for them to look back upon, from her evidence and from the tenor of psychiatric reports, I am satisfied that although she has continued to be greatly distressed, and to suffer psychologically as a result of her ongoing condition and its symptoms and the effect on her family, she is unlikely to deliberately attempt such action again.102.As her pain continued after the graft surgery had secured the jaw, Mr Carlisle administered three local anaesthetic injections in September 2000, into three facial areas, but without successfully relieving pain. In June 2001, he instilled botox into facial muscles to relieve some spasm, but there was no significant improvement. She was recommended various bite raising appliances to stabilise the palate.103.Two further remedial operations have been performed on Mrs Paterno. In September 2001 Mr Carlisle operated to remove the reconstruction plates after union of the lower jaw had been achieved. In April 2003, there was surgery performed by Professor John Ferguson and Mr Andrew Heggie in which a re-contouring of the right mandible was undertaken and four mandibular implants placed. There is no direct evidence of those procedures through reports or oral evidence of Mr Ferguson or Mr Heggie, so the extent of that procedure is not in evidence except so far as the plaintiff describes undergoing a further general anaesthetic for it.104.In addition to the five remedial operations and the ultimate result of continuing to experience chronic pain on the right side of her face, the plaintiff has been left with permanent numbness in her lower lip and a structurally altered mouth that still affords her difficulty chewing, and such that at times her ability to speak is distorted. Her strong medication may well contribute to her slurring of words, dribbling and slackness of the right side of her mouth, but there is no doubt that structurally her mouth has been changed, that the lip is numb, and even were she to be weaned from the extent of medication
  19. 19. she currently takes, these disabilities will not be fully corrected. She has permanent scarring on both sides of her neck as a result of the surgery in December 1999 by Mr Carlisle and Mr Redman, who needed to approach the mandible from outside and through her skin. The appearance of her face will remain asymmetrical, noticeably extended on the right side compared with the left.105.A further enormous effect on the plaintiff has been the side-effects of large and continuing quantities of medication. As a consequence of prolonged use of opiate-based drugs, she has suffered severe bowel side-effects, to the extent of at least twice being hospitalised for those. This has reached a stage where as her husband describes, she needs to counter constipation with substances that cause her to lose control of her bowels while heavily sedated, and she soils her bed regularly. Approximately a couple of times a week Mr Paterno needs to help her with this and clean up after her in the middle of the night, a situation obviously very distressing for both of them.106.There were three admissions to Cabrini Hospital between 2003 and 2004 to help control her pain, and during which medication was adjusted. In December 2002, in an attempt to take her off opium based pain-killers to alleviate her bowel problems, she was referred to Dr Peter Courtney, an Anaesthetist specialising in pain management. He administered ketamine infusions undertaken in hospital. The defendant emphasises that Dr Courtney recorded that while in hospital her abdominal pain was her main problem, and she had very little by way of facial pain except on one occasion, but Dr Courtney also confirmed that while in hospital two stellate ganglion blocks- injections of anaesthetic- were administered when facial pain increased.107.Also of significance has been the quantity of medication which she has needed for the various consequences of her injuries. The precise drugs and dosages have been changed over the years, but since at least early 2000 there has been a large quantity of medication to address pain, anti- depressants, and various medications for the gastric complications from other medication. A list of her medications as at June 2006 was provided by Dr Lavoipierre. As prescribed, she is currently self-injecting 30ml doses of morphine every three to four hours. While giving evidence before me and, indeed, from my observations of her during the extended periods of time for the remainder of the hearing when she sat in Court, it is clear that the medication in itself has serious consequences for Mrs Paterno every minute of the day. At times she appears sedated, and at other times it is clear that the analgesic effect of her medication is running low and the stress to her of pain is visible on her face, as well as at times partial loss of control of her speech and facial movements.108.The effects of her injuries have very dramatically and seriously changed the plaintiffs life. Beyond mere ageing, she presents now as a different person from the one filmed in March 1997, admittedly at a joyous occasion and "dressed up". I accept that the overall effect has been to impose on her chronic intractable pain, only partially alleviated by large quantities of in itself debilitating medication. She has lost a lot of weight and is physically weakened. I accept that she feels dependent, and at times humiliated by the extent of her reliance on her husband for physical assistance. She has lost all confidence to socialise outside her family, and is described by Dr Lavoipierre as now virtually a recluse, needing constant assistance and also supervision for her pain, depression and anxiety.109.The prospect of Mrs Paternos daily living being significantly improved from what it is at present by her successfully undertaking a pain management program was explored during the hearing. All witnesses, including her and her husband, agree that if her pain could be controlled without the need for opiate-based medication, her lifestyle could be improved. She herself has repeatedly agreed to attempt suggested programs, be they through pain management clinics or on assessments such as those for this proceeding as to her physiotherapy, speech therapy and occupational therapy needs.
  20. 20. 110.For some years now, Mrs Paternos overall medical and pain management treatment has been coordinated under the supervision of Dr Patrick Lavoipierre, a consultant psychiatrist who specialises in pain management and to whom she was referred by Mr Carlisle in February 2000. Dr Lavoipierre prescribes the preponderance of pain medication including what are now morphine sulphate injections of 30 milligrams which she self- administers every three to four hours. The defendants case is highly critical of Dr Lavoipierres approach. Dr Lavoipierre gave evidence of the extensive referrals which he has made and coordinated to a variety of specialities to try to deal with her various ongoing problems, in particular centring around the enduring pain and also in relation to her gastrointestinal complications. He describes the addressing of her problems of severe constipation consequent on narcotic analgesia, starting with Dr Rowan Marks, gastroenterologist, in August 2002, Mr W. Johnston, bowel surgeon, and, in November 2002, Professor Peter Gibson, professor of gastroenterology at Box Hill Hospital. He also describes referral in 2004 to Professor Andrew Kaye, neurosurgeon at Royal Melbourne Hospital and also to Professor Teddy, who was apparently a visiting consultant at Royal Melbourne Hospital specialising in issues dealing with administration of gasserian ganglion radiofrequency, but this was not recommended for Mrs Paterno and Professor Kaye also offered no alternative treatment. She has been referred to the Royal Melbourne Hospital Interventional Pain Clinic and seen by Dr Malcolm Hogg. In his oral evidence, Dr Lavoipierre indicated it was his understanding that the attempt to improve her pain management through Dr Hogg has been unsuccessful. On the basis of Mrs Paternos own evidence, it might be that it was suspended until her gastrointestinal problems could be addressed. Dr Hogg was not called as a witness, nor was any report submitted from him, or any explanation for not calling him. I am satisfied that I should draw inferences from the failure to call Dr Hogg that his evidence would not have assisted the plaintiff and that I should more readily accept the evidence of Dr Trinca, as to there being prospects but not necessarily success in her gaining acceptance into and benefiting form an intensive pain management program. I cannot however speculate as to how far the attempt at the Royal Melbourne Hospital pain management program progressed, or whether it is still on hold or abandoned.111.The defendant relies primarily upon the evidence of Dr Jane Trinca, a specialist in pain medicine with a background in anaesthesia, at the Barbara Walker Centre for Pain Management at St Vincents Hospital. She assessed the plaintiff early this year for the purposes of this case, provided reports and was called to give evidence. Dr Trinca made clear that the assessment she conducted on the plaintiff was not the extensive assessment which would be needed to fully evaluate Mrs Paternos suitability for the pain management program at the Barbara Walker Centre, although she found no adverse indicators. Were Mrs Paterno assessed as suitable for and admitted to that program, the first step before she could undertake the program would be an intensive detoxification from her opiate-based medication, which would take up to two weeks as an in-patient. In addition, the gastrointestinal or bowel problems would need to be separately addressed, as ill-health through those would not be conducive to success in the pain management program itself. The program is aimed at improving the level of function of the patient, rather than in reduction of pain; it is aimed at assisting the patient to acquire management techniques to live with and adapt to and cope with the effects of pain and other disabling aspects of her condition.112.Dr Trinca noted that Mrs Paterno expressed interest in considering this approach to managing her current problems, but acknowledges that, having been unwell for such a prolonged time and having submitted to a passive management program for such a long while, it would be a large undertaking on the part of Mrs Paterno to undertake and succeed in the change of direction proposed by her pain management program.
  21. 21. 113.The program itself involves a team of professionals interacting to assist the patient to address and adapt to her disabilities. Dr Trinca also confirmed that sometimes it requires more than one attempt for a person to succeed at such a program. The selection process is rigorous and approximately only one in eight assessed is suitable, although some are excluded because they have more simply solved conditions and Mrs Paterno has no obvious barriers to acceptance. The assessment process for Mrs Paterno was described, using a team of different professionals which in her case would include a dental professional and possibly a psychiatrist if there were major depression, and sometimes a rehabilitation specialist. The concept is five days intensive and then three weeks of outpatient visits and a home program with monthly reviews by three practitioners - a psychologist, a physiotherapist and a nurse, and normally a six month follow-up and then a 12 month follow-up. Some patients require further follow-up.114.The defendant relied also on the views of a number of other doctors who have assessed the plaintiff over the years and who either directly or indirectly are critical of her opiate based medication and recommend measures to try to recondition and rehabilitate her to more active everyday life.115.Dr Peter Courtney, to whom the plaintiff had been referred in 2002 by Professor Gibson to try to eliminate her use of morphine, was called by the defendant. His practice is also as an anaesthetist with a pain management specialisation since 1986. He had administered a course of ketamine to her which was primarily at the behest of Professor Gibson to enable her bowel problems to be addressed by stopping the opium. Mrs Paterno had done all that was asked of her in hospital and she was discharged. He had administered injections of anaesthetic to address her facial pain on two occasions during her stay as an inpatient. He always tells patients that the taking of ketamine is a trial program. He confirmed that people taking ketamine are often unsteady on their feet and need assistance such as to go to the toilet and it is possible for them to hallucinate, so he felt it understandable that her husband was concerned and stayed at the hospital while she was undertaking this treatment.116.He confirmed that if a patient ceases taking narcotics, the pain persists, but the lifestyle can be improved by the removal of the effect of narcotics, although in many cases the pain does not change and even chronic pain is not always controlled by narcotics. He sees some patients come back every two or three or five years for a "top-up" of the treatment, although some pain management programs will not accept patients who have failed other courses. He confirmed that it is the patients own motivation that is fundamental for them to continue with a program. He said it was probable, but not invariable, that the longer a person has been subject to chronic pain and medication for it, the less likely the patient is to succeed on a future program. He confirmed that the whole purpose of a pain management program is to improve the patients ability to look after him or herself, and psychologically to try to improve their confidence to do things for themselves.117.I am satisfied that under the overall coordination of Dr Lavoipierre, all reasonable options of obtaining remedial physical treatment for Mrs Paterno have been tried. I accept from the letters to him from some of the many specialists in different fields to whom he has referred her; as well as other consultations such as with Ms Anna Talacko that no further curative solutions have been offered or are likely to be available.118.I am also satisfied that there are good reasons to make further attempts to remove her reliance on heavy morphine based medication. The groundwork has been laid for Mrs Paterno through the contact with Dr Trinca at the Barbara Walker Centre, and it may well be that a formal assessment for her suitability for that program should be tried. However, there are clearly significant barriers to her acceptance into such a program, including the need to deal with her bowel problems, for which Professor Gibsons recently tendered report indicates that some further surgical action in that regard is being contemplated, although not to be performed by him and therefore only
  22. 22. in evidence through hearsay. In addition, there are the psychiatric issues and the initial need for a drug and alcohol assessment specialist, her withdrawal from the opiate-based drugs. These features, together with the many years of chronic pain and pain management problems, indicate that while a possibility, her successful rehabilitation through a pain management program is not a probability.119.Mr Masel submitted that the indication in a recent report that Dr Lavoipierre intends to send her to another pain specialist to monitor her medication on a regular basis and to himself confine his ongoing treatment to her psychological needs is an indicator that she will be taken off morphine. I do not accept that statement to be such an indication, although as already stated it is to be hoped that her various longstanding and disqualifying problems can be addressed to enable her to be accepted into and hopefully to successfully undergo a pain management program.120.Both sides agree that the prospect of the plaintiff successfully undergoing a pain management program, recovering some more enjoyment of life, and requiring less in the way of medication and supporting services such as attendant care in the future, should be treated as a vicissitude which might reduce the future need for services and treatment, and so far as the prospects of her lifestyle improving relevant to her general damages.121.So far as general damages are concerned, I take into account that there is a prospect for some improvement in the plaintiffs lifestyle, either through a successful pain management program or through the provision for her of the speech therapy, physiotherapy and occupational therapy services in respect of which evidence was given by Jan Mackey, Margaret Darcy and Ms Harris. All of the evidence, however, confirms that even if she were to be successful in a pain management program, it would be to provide her with strategies to deal with her ongoing physical condition, including the chronic pain. Pain management programs do not cure the pain, but can only assist the person to cope with it.122.Mrs Paterno will, as is conceded by the defendant, live for the rest of her life with pain and with the physical consequences of a misaligned jaw, misaligned bite, numb lip and scarring on her neck. For reasons already stated, I do not consider that she will regain the life she previously had or the life she could have expected to have by now, aged 57 with her children established in careers as adults, a husband still devoted to her but who would have either still been engaging in running one or more businesses, or spending his retirement enjoying the social activities which they had shared through his Italian club, travel which she feels unable to undertake in her physical condition, and indulging in her obvious taste for smart clothes, entertainment and socialising.123.The aim of general damages is to compensate, so far as money can, the suffering caused by another person’s negligence. Taking into account the protracted and extreme suffering of the plaintiff over the last near nine years, through five remedial operations and the plethora of other attempted treatments, heavy medication with its own consequential problems, and her ongoing symptoms, I assess her pain and suffering to date as having been very substantial. She is now aged 57, and the prospect for her future is that the possibility of a successful pain management program or other supportive services would only moderate some of the ongoing effects of her injuries and will not cure them. Allowing that there might be some such moderation of some of the effects of those in the future, I consider that to fairly but not over- generously compensate Mrs Paterno for her past and likely future pain and suffering and loss of enjoyment of life resulting from her injuries, the sum urged on her behalf of $350,000 is appropriate. Special Damages124.A claim for medical and like expenses to date is made as follows: