District Court New South Wales

• Medium Neutral Citation: Amanda Jurkovic v Paul Hubbard [2013] NSWDC 21
• Hearing dates: 19, 20 September 2012, 5 March 2013
• Decision date: 21 March 2013
• Before: Judge MJ Finnane QC

Decision

See paragraphs [66]-[67]

• Catchwords: PERSONAL INJURY - displaced breast implant - trauma - injury - prolapse - rotation of breast implant - loss of self confidence; CAUSATION - chiropractic manipulation; DUTY OF CARE - reasonable and competent chiropractor
• Category: Principal judgment
• Parties: Amanda Jurkovic (Plaintiff); Paul Hubbard (Defendant)
• Representation: NJ Broadbent (Plaintiff); L Chan (Defendant); Bielby Poulden Costello (Plaintiff); Collins Biggers Paisley (Defendant)
• File Number(s): 2011/312472

Judgment

Introduction

1 The plaintiff is a young woman aged about 30 who is very concerned about her appearance. She is married, but now separated and has 2 children. She is trained as a beautician which means that she adjusts and manicures the finger nails of women, a task that requires her to be bent over a table with her head and neck at a stooped angle for lengthy periods.

2 In 2005 she got a referral to see a plastic surgeon in order to have her breasts made enlarged. She felt they were too small and in evidence before me, said she wanted to be "more womanly". Photos I have seen of her breasts before she had any operation show what appear to be well-proportioned breasts. However, she felt they were not large enough and with her mother, went to see Dr de Torres; a specialist plastic surgeon with considerable experience in the field of breast implants and breast reconstruction.

3 Dr de Torres performed an operation and gave her two implants, which made each of her breasts bigger. The implant operation was successful and, according to her evidence, it certainly made the plaintiff feel better about herself.

4 According to her, she felt like a woman, was able to wear a wedding gown and feel like a woman and not a flat-chested little girl and could get decent matching underwear with a larger breast size without the need for padding. She felt more confident when she went to race days at the Melbourne Cup or Randwick Racecourse on ladies Day and she could wear a two-piece bikini at the beach.

5 In 2008 she saw the defendant, a chiropractor possibly half a dozen times before December of that year to fix a stiff neck and shoulders that had been causing her discomfort. She got these conditions because her work as a beautician led her to be looking down. She claimed that she was an active woman who ran and walked and exercised every day. She claims that she is now 68 kg but was 50 kg in 2008. She is a very good-looking woman and seems to me to be quite slim and well proportioned.

6 Her husband had been to receive chiropractic treatment from the defendant on many occasions in the previous years and that may also have been a factor in her going to see the defendant for treatment.

7 She said in evidence that she saw the defendant on the 8 and 15 December 2008.

8 On her evidence, he sought no information from her when she first went to see him, apart from establishing that she had some neck pain. He did not take any form of medical history. She paid him in cash and did not get a receipt.

9 On each occasion she had manipulations to her neck and to her spine. On 15 December 2008 he also gave her a manipulation, which required her to put her hands across her breasts as she faced downwards onto a table. He then put his arm on one of her hips and the other arm across her breasts and pushed her down towards the table on which she was reclining he did this on each side. The manipulation on her right side was the second of two manipulations. When he finished, she sat up and said she felt a bit sick and somewhat nauseous but she did not experience pain. He had put his weight on her body.

10 Her husband was there with her at this manipulation and, when he gave evidence subsequently, confirmed her account of what had happened.

11 When she got home after some grocery shopping and took her clothes off in the shower she noticed that her right breast was deformed. The implant had turned. From that time to the present the implant sometimes comes into position and sometimes falls out of position.

12 She said she went back to see the defendant on 16 December 2008 and told him that he had moved her implant when he manipulated her.

13 He told her that he didn't know she had an implant. He also said that he had insurance and he needed her to answer some questions. For the first time he asked her name, address and date of birth. He had never previously sought this information, nor had he ever obtained a history from her nor had he ever enquired about any of her health problems if she had any.

14 He did not ask whether she had any previous operations. He then gave her a consent form to sign. This had some writing on it which was not hers. She declined to sign it and took it home with her. It is now exhibit P1.

15 She went to see Dr de Torres two days later and showed him what had happened. He tried to manipulate the implant back into position but could not do so.

16 Dr de Torres gave evidence and said that the operation he performed was very successful. He said that the implant fitted quite exactly into the pockets, that they had a Velcro like covering to hold firm but her capsules, which is the scar that forms around the implant, were soft rather than hard which meant that they could easily rupture if some force was applied. In evidence, Dr de Torres explained that the force would not have to be excessive, nor would pain necessarily result. It was his opinion that the capsules had suffered damage because of trauma. He considered that the pressure from the chiropractic manipulation could have been sufficient to cause the rotation of the implant in the plaintiff's right breast.

17 She is now very conscious of her breast being displaced. She cannot wear correct clothing and feels embarrassed to be naked in front of her husband. This impacted on her sex life. She and her husband have now separated. She was cross-examined extensively. About the only important matter that was raised with her was whether the defendant had taken a history and whether he had given her any receipts. She also agreed that she had done a mountain bike ride in western Sydney but denied striking her chest on the handlebars of the bike and denied having any other accidents.

18 From her point of view what happened has been a complete disaster and she feels quite shattered and she wants the implants to be fixed by further surgery.

The Evidence

19 I accept the evidence of the plaintiff as being honest, reliable and acceptable. She was clearly very distressed about what had happened.

20 The husband, who was a carpenter, supported the evidence of his wife. He had gone to see the defendant and had received treatment for himself some time before December 2008, in fact he had seen him over a three-year period. It was his recollection that his wife had gone to see the defendant a few months before December 2008.

21 He was present on the occasion when her breast ruptured. He saw the result fairly quickly because it was his practice to shower with his wife. It was while they were showering together that she showed him the deformation of the right breast on the day that the implant rotation had occurred. She was shaken up and worried. He said that she had lost all her confidence and was shy around him.

22 For a long time she avoided having sex. According to him, the significant changes in her because of the rupture has led to prudishness and to the breakdown in their relationship. In his opinion, she is not the person she used to be.

23 He can also recall that when he went to see the defendant for his own appointments, he claimed that he was only given receipts if he paid by credit card. If he paid in cash, he was not given a receipt.

24 I accept the husband's evidence. He was an honest, reliable witness who clearly told the truth about something that happened. He saw the slipped breast implant almost as soon as the plaintiff did. He has felt the consequences and in particular, the breakdown in their sexual life and in their marriage.

25 The next witness to give evidence was Mr Bruce Watts, an experienced chiropractor. He gave two reports of 16 September 2010 and the 9 February 2011. He spoke to the plaintiff and as well as that took into account material supplied to him by the plaintiff's solicitor, which included a report of Mr John Kelly chiropractor.

26 Mr Watts explained chiropractic in these terms:

"Chiropractic is specifically- firstly has a number of different schools of thought. Specifically it deals with manipulation of the spine, with an aim predominantly of normalising normal function of the spine, such as mechanical restrictions which can occur in the spine through manipulation predominantly of the facet joints, which are little tiny joints at the back section of the spine, you can reduce down either local nerve compression through what is called a recurrent nerve, which is a little nerve that wraps around the little capsule of that particular joint to reduce down pain. It can also be used to reduce down postural anomalies, which may be affecting disk type problems or neurological problems. In modern medical areas it is quite often adopted as a pre-surgical approach, like physiotherapy, to determine if a patient can be of a nerve root compression prior to adopting more serious approaches such as therapy."

27 Mr Watts was of the opinion that a reasonably competent chiropractor would take a reasonably comprehensive medical history before commencing treatment. He was also the opinion that enquiries should be made before each treatment session about any difficulties the plaintiff has had since the previous treatment or any discomfort she has suffered.

28 He examined Exhibit D2 and concluded that although the defendant had a suitable medical history questionnaire on file, he did not complete it in a reasonable and comprehensive way. My examination of exhibit D2 leads me to have the same opinion as Mr Watts in relation to the completion of a suitable medical history questionnaire.

29 It was also his opinion that a reasonably competent chiropractor would have enquired about any previous surgery. It was his opinion, having regard to what the plaintiff told him and the documents he saw that the chiropractor in fact did put pressure on her right breast during the course of manipulation. It was his further opinion that the chiropractor's choice of manipulative technique was inappropriate having regard to her having breast implants. His evidence as to the position he assumed she was in at the time of the manipulation is not entirely clear. On one view of it, he thought Ms Jurkovic was telling him she was lying on her back. At no point in the evidence did she say this and I conclude he has misinterpreted what she did say. He also accepted that the defendant stood in front of her at the time of the manipulation. This was contrary to the evidence she gave. His reports do not bear out that she told him at any time that she was standing in front of him,

30 I accept Mr Watts' opinions about the failure of the defendant to take a medical history and to seek information about previous operations. However, his views on the lumbar roll appear to me to be somewhat confused and I give them no weight other than his opinion that if the defendant had know the plaintiff had breast implants it would have been inappropriate to use a procedure that put pressure on her breasts

31 Mr John Kelly, chiropractor, was called to give evidence on behalf of the defendant. It was his evidence that the standard lumbar roll performed by chiropractors could not be something that caused the injury of which the plaintiff complained.

32 During the course of his evidence an examination couch was set up in the court and the defendant's instructing solicitor lay on the couch on her side and Mr Kelly demonstrated the standard lumbar roll. The plaintiff, at my suggestion, came up to the area of the couch to view this demonstration and she then, at my invitation and got on the couch and demonstrated the technique performed on her by the defendant.

33 That technique was one Mr Kelly said would not be regarded as a standard lumbar roll.

34 The standard lumbar roll, which in his opinion would not have put any pressure on the plaintiff's breast area would be carried out by the chiropractor facing the patient and at no point would her breast be brought in contact with the table.

35 However, the plaintiff demonstrated a manipulation in which the chiropractor stood behind her and exerted pressure on her upper body, forcing her breast onto the table. This was a quite different procedure and one that was not taught to chiropractors, according to Mr Kelly. It would put pressure on the breast.

36 Mr Kelly was clearly entitled to express the opinions he expressed. It is clear that if the defendant carried out the lumbar roll procedure in the manner described by the plaintiff and her husband, he would not regard it as an appropriate chiropractic procedure.

37 The next witness was Associate Prof Haertsch, a plastic surgeon who is responsible amongst other things for the burns unit at the Concord Hospital. He has conducted breast implant operations of the type performed on the plaintiff. His evidence was that if the cavity in which the implant was placed was fully occupied by the implant, and the implant was displaced, the plaintiff would have felt an immediate pain because the capsule which in fact was scar tissue around the implant, would have ruptured.

38 If on the other hand, the implant was in a loose cavity, pressure applied to it could cause displacement without any pain. He was also of the opinion that the problem could be remedied by operative treatment covered under the Medicare scheme for something in the order of $4500. The operation would involve removing the implant from the right breast, and reducing the size of the pocket and replacing the same implant. His evidence about the possibility of the implant being in a loose cavity was rejected by Dr de Torres, who said that the implant was in a proper space.

39 Moreover, this opinion was irrelevant to the case as it was pleaded and I reject it.

40 I prefer the evidence of Dr de Torres to that of Associate Professor Haertsch because Dr de Torres was the treating surgeon, he had a great deal of experience in surgical insertion of breast implants for cosmetic purposes and his evidence was clear and concise. Associate Professor Haertsch's experience seemed to be more associated with the treatment of burns, although he had done some breast implants. His experience with cosmetic implants was not as extensive as that of Dr de Torres.

41 The final witness was the defendant. Unfortunately, he was severely injured in a car accident in September 2012, receiving significant head injuries and as a result, could not give evidence until 5 March 2013. During the course of that evidence, he was obviously finding it very difficult to speak. Frequently, he had to drink water and at one stage, became so distressed that I adjourned the hearing and arranged for him to be taken to a medical facility that is available for use in the Dust Diseases Tribunal.

42 In assessing his evidence, I had to make due allowance for his obvious state of illness. He made it plain that he could not remember many events and that is entirely understandable, because of his head injuries.

43 The patient record card he produced for the plaintiff had very little detail on it. He claimed that it was copied from a form used by another chiropractor. In my opinion, the lack of detail on the form is indicative of an approach to the plaintiff that was less than fully professional.

44 The plaintiff, as I earlier said, claimed that the defendant did not seek any information from her at all until the day after her breast relapse, when she returned to complain. She had given evidence that he presented a form for her to sign. She took it away and did not sign it. This form (exhibit P1) is entitled "Consent to Chiropractic Care" and it contains acknowledgements of risk and consent to treatment by the defendant.

45 I accept that the defendant gave this to her on the day of her return to complain to him. She said it was on 16 December and he said it was on 17 December.

46 Clearly he wanted her to sign the form to get at least some measure of protection from being sued. His general record keeping seems to have been somewhat haphazard. He could produce some records to indicate treatment of the plaintiff's husband, but no records for the plaintiff apart from her patient record card. He could not remember when he completed this card, but his usual practice was to do it sometime close to the first consultation. He said that 'generally' he got details such as names, addresses and phone numbers on the first visit.

47 The plaintiff was very definite that this card was not filled in until she went back to complain. I have already accepted her evidence as credible and, having regard to that and to the defendant's uncertainly about this, I find that the card had no entries placed on it until the day on which the plaintiff returned to complain.

48 I also prefer the evidence of the plaintiff to that of the defendant on the question of when she went to see him and that she paid him in cash, getting no receipt. I have this view because she was definite about her evidence and he was not.

49 One of the early issues in the trial was whether the defendant got a history at all from the plaintiff. I have already found that he did not get one at any time before he treated her.

50 His evidence was that he would not have given her any different treatment if she had told him she had a breast implant. In my view, that evidence makes it even more certain that he did not ask her anything about operations and at no time was she asked or did she tell him about her breast implants.

51 He demonstrated in court the lumbar roll and a seated wing lift, using the solicitor for the defendant as a model. The lumbar roll he demonstrated before me in court involved him facing the model and pushing down along her right arm as she was lying on a table and at the same time pushing down on her right hip bringing it towards the table. In his evidence, the defendant stated this is the manner in which he carried out the lumbar roll on the plaintiff.

52 This procedure, if carried out, was the standard lumbar roll spoken of by Mr Watts and Mr Kelly. It did not cause any pressure to be applied to her breasts.

53 Making due allowance for the obvious illness of the defendant at the time that he gave evidence, I found his evidence less than impressive. It is clear to me that he took no history at all from the plaintiff before he treated her and when she complained, he tried to persuade her to fill in a form, which seemed designed to establish that she had full knowledge of everything relevant, even though, in fact, she did not.

Findings

54 I do not accept the defendant when he says that he carried out this procedure in the standard way. I accept the evidence of the plaintiff and her husband that he used a procedure that forced her breasts to be pushed into the top of the table on which she was lying.

55 I accept the evidence of Mr Watts and Mr Kelly that this procedure was inappropriate as a chiropractic procedure.

56 Further, I find that the defendant did not at any time before he treated the plaintiff seek from her any history of operations or indeed of anything.

57 I have earlier referred to his evidence that he would not have done anything different if he had known of her having breast implants. In my opinion, if he had known she had breast implants, adopting a procedure that involved pushing her breasts into a table would have been engaging in conduct falling short of that expected of a reasonably competent chiropractor and it would entitle me to find that his treatment of her was negligent.

58 However, he clearly did not know she had breast implants. His failure to inquire about the plaintiff's health and whether she had undergone any operations, in my opinion was negligent, since the risk of harm from treatment as carried out by him was foreseeable, was not insignificant and in the circumstances, a chiropractor in his position, applying the standards of a reasonably competent chiropractor would have taken the step of inquiring before engaging in a form of treatment that involved compressing breasts onto a table.

59 In making these findings, I have given consideration to the probability that the harm would occur if care to obtain this information were not taken.

60 I further find that because he did not find out that the plaintiff had breast implants, he adopted a procedure that proper chiropractic practice would have said should not be adopted and this procedure in fact caused the rupture of the capsule.

61 Evidence was given by Professor Haertsch that she would have experienced sharp pain when this happened. She in fact felt light headed and sick. The opinion of Professor Haertsch does not cause me to change my opinion that the procedure adopted by the defendant was causative of the breast relapse.

62 What also convinces me that the treatment of the defendant caused the breast prolapse, was evidence that shortly after the plaintiff went home, stripped off and had a shower with her husband, both of them noticed the breast had prolapsed. That evidence, combined with her evidence of feeling light-headed and sick when the procedure completed, convinces me that the prolapse happened as a result of the procedure. I would mention in passing that the plaintiff's husband was cross examined about massaging her breasts when he had sexual intercourse with the plaintiff. This does not explain the prolapse and this evidence in fact was quite irrelevant.

63 Therefore, I find a verdict for the plaintiff.

Damages

64 The plaintiff does not claim any economic loss. She claims non-economic loss and the cost of operative treatment to fix her condition. Dr de Torres has given evidence of the treatment he would give her and the cost of it. Associate Professor Haertsch has given evidence that it could be done more cheaply, not as a cosmetic operation, which requires the patient to pay the full costs of the operation, but as a surgical operation to rectify damage and thus, subsidised under the Health Benefits system.

65 The plaintiff wants Dr de Torres to carry out the operation and I consider this is reasonable and that the defendant should pay the fee charged by Dr de Torres.

66 She is someone who is very upset about what happened and feels that she is not the woman that she was. Her marital relationship has come to an end because of this. She is a young, fit looking and attractive woman to whom her appearance is very important. The prolapse has been a devastating blow to her self-confidence and her belief in herself. She is entitled in my opinion, to substantial compensation for the injury she suffered. I consider she is entitled to damages of 25% of a most extreme case.

67 I will not enter judgment or make an order for costs until the parties have considered this judgment and have been given the opportunity to make further submissions

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Decision last updated: 25 March 2013