District Court New South Wales

• Medium Neutral Citation: Quinn v Scholtz [2014] NSWDC 71
• Hearing dates: 2 June 2014, 3 June 2014, 23 June 2014 and 24 June 2014
• Decision date: 25 June 2014
• Before: Judge M L Williams SC

Decision

Verdict for the defendants

• Legislation Cited: Civil Liability Act (NSW) 2002
• Cases Cited: Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542; Elliott v Bickerstaff [1999] NSWCA 453
• Category: Principal judgment
• Parties: Donna Quinn (Plaintiff); Dr Jacques Scholtz (Defendant); Murrumbidgee Local Health District (Defendant)
• Representation: Mr A D Campbell (Plaintiff); Mr S Barnes (Defendants); Gerard Malouf & Partners (Plaintiff); TressCox Lawyers (Defendants)
• File Number(s): 2011 / 318414

Judgment

1 The plaintiff then 43 years of age came under the care of Dr Scholtz, a general practitioner in Cootamundra and a visiting medical officer at Cootamundra Hospital, on 6 July 2011. On 9 July 2011 she underwent an open appendicectomy at Wagga Wagga Base Hospital (Wagga Hospital). Events over that period have led to a claim by the plaintiff against Dr Scholtz and Murrumbidgee Local Health District, the operator of Cootamundra Hospital.

2 When the case came on for hearing on 2 June 2014 Counsel indicated that it was proposed to call seven doctors to give expert evidence on issues arising in the case. Fortunately, following further orders, a number of the witnesses were able to participate in a conclave and give concurrent evidence when the matter resumed on 23 June 2014.

Agreed Facts

3 The assumptions upon which the expert conclave proceeded have been adopted as agreed facts by both counsel (with three minor exceptions to which I will refer). This helpful and sensible agreement enables me to record those facts as follows.

Tuesday 5 July 2011

4 From approximately 18:00 on Tuesday, 5 July 2011 the plaintiff developed right-sided abdominal pain and vomiting.

Wednesday 6 July 2011

5 At approximately 1015 hours on Wednesday, 6 July 2011 the plaintiff presented to Cootamundra Hospital and was seen soon thereafter by Sue McGlynn, the Nurse Unit Manager. The 'Presenting Problem and Nursing Assessment' records state:

"Pains in side constant vomiting

Vomiting since 1800 hrs 5/7/11 +abdo pain- RIF"

6 She was triaged category 3.

7 Sue McGlynn took a history at 10 30 hrs and performed an examination and the notes record:

"presents to A&E with history of vomiting since 1800hrs 5/7/11 & lower right sided abdo pain. BO this am. states same "loose". States feeling miserable. Unable to keep fluids down. States abdo pain "all over abdo" and pain extreme! Bowel sounds present on auscultation. Abdo tender on palpation."

8 At 1010 and 1115 hours respectively the plaintiff's vital signs were recorded as follows:

Temp Pulse Resps BP SaO2 FiO2

1015 36.7 83 24 146/81 98% RA

1115 36.5 78 20 140/77 99% R/A

9 There were no resident medical practitioners at Cootamundra Hospital. The local general practitioners held VMO appointments and participated in an on-call roster.

10 On 6 July 2011 the on-call VMO was Dr Scholtz, a general practitioner. He was consulting patients at his surgery, the Cootamundra Medical Centre ('the Medical Centre').

11 Sue McGlynn telephoned Dr Scholtz to inform him of the plaintiff's presentation. She advised Dr Scholtz that the plaintiff had been vomiting sine the previous night and had abdominal pain

12 Consequently the plaintiff attended the Medical Centre to be assessed by Dr Scholtz.

13 Dr Scholtz assessed the plaintiff at the Medical Centre. He made a record of his consultation at 11.37.

14 Dr Scholtz performed a physical examination of the plaintiff. His findings were recorded as:

No guarding. No rigidity. No rebound. No distension. Normal bowel sounds. Tender RUQ. Positive Murphy.'

15 Dr Scholtz made a preliminary diagnosis of cholecystitis and ordered the performance of blood and other tests. He gave the plaintiff an injection of Maxalon, inserted an intravenous cannula and commenced the administration of fluids [He considered the possibility of appendicitis - defendants' submission].

16 The plaintiff remained at the Medical Centre on a bed in a holding ward. At approximately 16.00 Dr Scholtz received blood test results which indicated, amongst other things, the plaintiff had a raised white cell count of 19.5 and a neutrophil count of 16.9. Blood results regarding the plaintiff were available from 28 May 2011 which showed counts of 9.3 and 6.5 respectively.

17 Dr Scholtz arranged to admit the plaintiff to Cootamundra Hospital for the administration of intravenous antibiotics, fluids and further assessment.

18 The plaintiff was admitted to Cootamundra Hospital at approximately 17:00. . Upon admission the Plaintiff was given Endone for pain at 1830. Further Endone was requested by the Plaintiff and given at 2210. At 0140 she was given Panadol. Endone and Panadol were repeated at 0600. The plaintiff remained on panadol and endone for the duration of her stay at Cootamundra Hospital.

Thursday 7 July 2011

19 Dr Scholtz reviewed the plaintiff on the morning of Thursday, 7 July 2011. He examined the plaintiff again and detected abdominal pain, particularly in her right upper quadrant. He ordered a CT scan to assess the extent of the cholecystitis and exclude any other diagnosis.

20 The nearest facility to Cootamundra for the performance of a CT scan was Wagga Wagga Base Hospital ('Wagga Hospital'). Nursing staff at Cootamundra Hospital made arrangements with Wagga Hospital. Dr Scholtz expected the Plaintiff to go to Wagga on the same day i.e. 7 July 2011. [Wagga Hospital was unable to fit the plaintiff in on 7 July so a booking was made for 8 July - defendants submission].

Friday 8 July 2011

21 Dr Scholtz next reviewed the plaintiff on the morning of Friday, 8 July 2011. The plaintiff's observations had remained within normal limits but she was still in pain.

22 The plaintiff went to Wagga Hospital for the CT scan. She travelled to Wagga in her own car rather than by ambulance or patient transfer. The plaintiff's evidence is that she had been told by the nursing staff that she had to find her own transport.

23 At approximately 10.00 a CT scan of the plaintiff's abdomen and pelvis was performed at Wagga Hospital. Inter alia the report stated:

'Findings

In the right iliac fossa is a blind-ending tube with a diameter of 12 mm which is retrocaecal in location. There is adjacent induration around this and extending to the caecum. This is consistent with a retrocaecal appendicitis. No appendix mass or fluid collection is present. There is no dilatation of the more proximal small bowel.

...

Conclusion

Retrocaecal appendicitis. ...'

24 The plaintiff was admitted to the hospital for treatment.

25 At 17.00 the plaintiff was seen by Dr Symons, surgical registrar. He noted:'CT = appendicitis, non-perforated ...' and the plaintiff was subsequently admitted under the care of Dr Gamble, surgeon, for performance of an open appendicectomy [At 1835 a note was made by a nurse: '... for OT at some stage tomorrow... Pt has been down stairs once this pm for a smoke. ... - defendants' submission]..

Saturday 9 July 2011

26 At approximately 1328 the plaintiff underwent an open appendicectomy. The Operation Report states:

'Findings: gangrenous appendix, free fluid, no other abnormality identified.

...

Inspection carried out

retrocaecal appendix noted

freed up from caecum

appendix tied at base

appendix cut

Diathermy to base, no discharge, no bleeding, tie secure

Inspection carried out following

no bleeding, haemostasis achieved

Corrugated drain placed

...

Post-operative Information

Transfer to wards

TEDs

DVT prophylaxis

IV AB

light diet

will remain as inpatient for at least a week

leave dressing on 3 days'

27 Subsequently the excised tissue was subjected to pathology examination. The histopathology report concluded:

'DIAGNOSIS

APPENDIX: acute suppurative appendicitis with at least microscopic perforation'.

28 Following discharge on Friday 15 July 2011

29 The plaintiff was discharged from Wagga Hospital on the morning of Friday, 15 July 2011.

30 The plaintiff was later seen at the Medical Centre for wound management on seven occasions between 19 July 2011 and 5 August 2011.

31 Since 5 August 2011 the plaintiff has not sought any medical treatment in respect of the wound.

Evidence

32 The following witnesses participated in the conclave or gave concurrent evidence.

33 Dr Peter Conrad, a general surgeon, who was, until his retirement from active practice 10 years ago, principally based at Nepean Hospital. Dr Conrad was retained by the solicitors for the plaintiff.

34 Associate Professor Peter Klein, who has 35 years of experience in general practice, retained by the plaintiff.

35 Dr Anthony Greenberg, a general surgeon, retained by the plaintiff.

36 Associate Professor Vincent Roche, a rural procedural general practitioner and a Visiting Medical Officer at Bowral Hospital for 26 years, retained by the defendants.

37 Associate Professor Michael Hollands, a general surgeon, and current President of the Royal Australasian College of Surgeons, retained by the defendants

38 The evidence contained in reports from other doctors who did not participate in this process and, subject to material expressly referred to in submissions, counsel agreed that it was unnecessary to deal with opinions set out in that material, given that the real issues in the case were identified and addressed in the conclave and in the concurrent evidence.

39 The answers given by the experts in the conclave are as follows:

Q1. Was a preliminary diagnosis of cholecystitis reasonable and consistent with competent professional practice?

Conrad: Yes.

Hollands: Yes.

Roche: Yes.

Clyne: No. Reasons: Associate Professor Clyne is not in agreement because such a provisional diagnosis of cholecystitis was based on incomplete physical examination and possibly an incomplete history.

Greenberg: Yes.

Q2. Should the First Defendant have made a differential diagnosis of appendicitis on 6 July 2011 and if so, when?

Conrad: Yes.

Hollands: Yes.

Roche: Yes.

Clyne: Yes.

Greenberg: Yes.

Q3. Did the First Defendant's failure to transfer the Plaintiff on 6 July 2011 to the Wagga Wagga Base Hospital for the purpose of performing a CT scan constitute a departure from accepted practice?

Conrad: Yes. Reasons: On 6 July 2011 the white cell count of 19.6 and acute neutrophil bias indicated the diagnosis was either acute cholecystitis or acute appendicitis. Either of these conditions would have been better treated in a major Hospital and a transfer of 120 kilometres would not have constituted a major problem.

Hollands: No. Reasons: In the presence of an examination that found right upper quadrant tenderness, vomiting and abdominal pain, it was reasonable for the Defendant to work on a diagnosis of cholecystitis until he had such evidence that he felt the diagnosis was no longer justified.

Roche: No. Reasons: A significant number of competent rural colleagues having performed an examination and taken a history which supports a provisional diagnosis of cholecystitis would not have urgently transferred the Plaintiff on the same day.

Clyne: Declines to provide an answer as he is a city based general practitioner and does not feel qualified to provide an answer.

Greenberg No. Reasons: It was acceptable practice to treat the plaintiff at Cootamundra Hospital on 6 July 2011.

Q4. Look at the report of the CT scan. Does it indicate that when the scan was performed on 8 July 2011 the Plaintiff's appendix was intact?

Conrad: Yes.

Hollands: Yes.

Roche: Yes.

Clyne: Unable to answer. Reasons:

Associate Professor Peter Clyne is unable to provide an answer as he is unaware of the false negative rate of the CT scan.

Greenberg: Yes.

Q5. Look at the Operation Report. Is the description of the performance of the procedure consistent with the removal of the appendix in pieces?

Conrad: No.

Hollands: No.

Roche: No.

Clyne: No.

Greenberg: No.

Q6. Look at the Histopathology Report. That document states inter alia under the heading "Clinical Notes", ".... Sample cut in half intra operatively ...". The macroscopic examination was done by a Dr M Ahadi. He reported that the specimen was received in 5 pieces but that "... the appendix is received in two segments ...".

Conrad: Agreed.

Hollands: Agreed.

Roche: Agreed.

Clyne: Agreed.

All: The conclave agreed that the report showed the appendix was received in 2 specific segments but that there were 3 extra pieces of tissue identified as pieces of fat.

Greenberg: Agreed.

Q7. Having regard particularly to what Dr Ahadi reports there but also elsewhere in his report, can it be concluded that the appendix 'burst' or 'exploded' into 5 pieces prior to the performance of the appendicectomy?

Conrad: No.

Hollands: No.

Roche: No.

Clyne: No.

Greenberg: No.

Q8. Was the surgery performed as an 'emergency procedure'?

Conrad: No.

Hollands: No.

Roche: No.

Clyne: No.

All: The surgery was not performed as an emergency procedure at Wagga Base Hospital as 20 hours elapsed between the presentation at Emergency and the operation being performed.

Greenberg: No but I would regard this as a semi-urgent procedure.

Q9. Did the alleged 'delay' between 6 and 8 July 2011 in performing the CT scan result in:

(a) The plaintiff having a 'burst' appendix?

Conrad: No. However, there was histological evidence of perforation.

Hollands: No.

Roche: No.

Clyne: No. However, there was histological evidence of perforation.

Greenberg: The word 'burst' is not a surgical term.

(b) A requirement for 'emergency surgery'?

Conrad: This question is unanswerable.

Hollands: This question is unanswerable.

Roche: This question is unanswerable.

Clyne: This question is unanswerable.

Greenberg: This question is unanswerable.

(c) The Plaintiff suffering ongoing septic infection which caused a post-operative would infection?

Conrad: Yes. Reasons: The delay was probably responsible for the post-operative wound infection on the grounds that the more severe the appendicitis, the more there is a likelihood of post-operative wound infection.

Hollands: No. Reasons: The question does not differentiate between whether or not the patient would have experienced a wound infection irrespective of the delay in performing the CT.

Roche: No. Reasons: Agree with Associate Professor Michael Hollands.

Clyne: I have no view on this because of the way the questions is framed.

Greenberg: If an appendix is infected the chances of wound infection would be increased.

(d) The Plaintiff having an increased risk of developing adhesions in the future?

Conrad: Yes. Reasons: In my view the delay in performing the CT scan caused a delay in performing an appendicectomy and probably caused some pus formation in the area of the appendicectomy, which in my experience was associated with future adhesion formation.

Hollands: No. Reasons: The patient does not havean increased risk of developing adhesions in the future as a result of any delay in performing the CT scan.The patient had localised appendicitis and there was no contamination by the appendix spilling its contents into the abdominal cavity according to the operative findings and the report of the pathologist.

Roche: No. Reasons: Agreed with the reasons of Associate Professor Michael Hollands.

Clyne: Unable to form a view as I am not a surgeon.

Greenberg: If the appendix is infected then the risk of intra-abdominal adhesions would be likely to increase.

Issues

40 The plaintiff's case was that Dr Scholtz breached his duty of care by:

(a) by not referring the plaintiff to Wagga Hospital on 6 July 2011 for the performance of a CT scan;

(b) failing to diagnose appendicitis; and

(c) causing a delay of 24-30 hours in the performance of the CT scan.

41 Mr Campbell, counsel for the plaintiff, opened the case on damages as involving the following consequences of the delay in performing the CT scan:

(a) a poor outcome from the surgery in relation to a post-operative wound infection that could well have been caused by ongoing septic infection (this allegation had not been raised in the pleadings or particulars, but was dealt with in the joint expert sessions);

(b) a significant psychological reaction to that; and

(c) the possibility of formation of abdominal adhesions in the future.

42 Counsel agreed that the issues to be determined are:

(1) Did Dr Scholtz breach his duty of care owed to the plaintiff in no referring her on either 6 or 7 July 2011 to Wagga Hospital for the performance of a CT scan and in not ensuring that she attended Wagga Hospital immediately after his referral on either 6 or 7 July 2011?

(2) If so, did the delay between 6 or 7 July and 8 July when the scan was performed cause any damage to the plaintiff?

43 There is no complaint of delay at Wagga Hospital between the performance of the CT scan at 10am on 8 July 2011 and the surgery at about 1.30pm on 9 July 2011.

Consideration

44 In dealing with the expert evidence I will refer only to those doctors who participated in the conclave or gave concurrent evidence unless otherwise specified.

45 All experts agreed that a preliminary diagnosis of cholecystitis was reasonable and consistent with competent professional practice, but that Dr Scholtz should have made a differential diagnosis of appendicitis on 6 July 2011.

46 Although there is no definition in the evidence of the distinction between provisional or preliminary and differential diagnoses, I was assisted by the views of Dr Roche as to how a rural general practitioner might come to a working diagnosis. He said that if there was not strong evidence for a provisional diagnosis or the most likely diagnosis, then he would generally list a number of differential diagnoses, but if there is a strong body of evidence he would go straight to a provisional diagnosis having listed in his mind a number of differential diagnoses. He would generally only list a differential diagnosis when there is significant doubt about the provisional diagnosis.

47 The plaintiff's submission was that Dr Sholtz did not make a differential diagnosis of appendicitis. It is fair to say that Dr Scholtz gave what might be described as varying responses to the questions on that issue, but on balance, I am satisfied that he did entertain appendicitis as a differential diagnosis. Firstly, he said that following his examination "appendicitis is always something that you consider with abdominal pain on the right hand side" , because its potentially a life threatening condition.

48 He said that he thought about appendicitis when he first examined the plaintiff on 6 July 2011. He agreed that he should have considered a possible diagnosis of appendicitis after he received the blood test results during the afternoon of 6 July 2011, but he did not do so.

49 When the proposition was put to him that he did not consider a diagnosis of appendicitis on 6 July 2011, he disagreed, notwithstanding that there was no note of this differential diagnosis and that this was contrary to his usual practice. His explanation was that "it didn't come up to me that much that I could consider that".

50 It will be noted that the propositions put to Dr Scholtz in the course of Mr Campbell's careful cross examination involved him being asked as to whether he considered a diagnosis of appendicitis. As Mr Barnes submits, consider is a word of imprecise meaning and ranges from the thought having crossed his mind at some point to making a formal diagnosis.

51 I bear in mind that Dr Roche said, when asked to agree that it was difficult to differentiate between a diagnosis of cholecystitis and appendicitis "once again it is a matter of degree". He further said "we're taught as medical students that the prime targets of cholecystitis are fair, fat, fertile, 40-ish female, and in - it's certainly more common in that age group and that was drummed into us as very junior medical students."

52 Dr Conrad is the only expert who asserts that it was a departure from accepted practice for Dr Scholtz to fail to transfer the plaintiff to Wagga Hospital on 6 July 2011 [or presumably 7 July 2011 as the issue was ultimately stated by Counsel].

53 A number of factors which were set out in the reports of Dr Roche and, where relevant supported by the contemporaneous records, lend weight to the view expressed by Dr Roche in his answer to conclave question 3. These matters are:

(1) it is not mandatory to exclude a retrocaecal appendix;

(2) it is not mandatory to routinely do a CT scan after admitting a patient with a provisional diagnosis of cholecystitis;

(3) his investigation of choice is abdominal ultrasound and he is content to wait for a few days if the scan is unavailable;

(4) the records of Cootamundra Hospital indicate the plaintiff was responding to the treatment given to her;

(5) those records note the plaintiff was working on her laptop and was able to leave the hospital to smoke cigarettes, matters reassuring of the accuracy of the provisional diagnosis of cholecystitis ;

(6) Dr Scholtz's ordering a CT scan on 7 July 2011 was clinically appropriate and timely;

(7) there was nothing in the clinical notes of Cootamundra Hospital to suggest the plaintiff's condition was deteriorating and make transfer to Wagga Hospital for a CT scan prior to 8 July 2011 an imperative. In fact she was improving clinically;

(8) a 48 hour delay in performing the CT scan was not inconsistent with accepted standards of practice and is common in rural practice; and

(9) Dr Scholtz's management and treatment of the plaintiff would be widely accepted in Australia in 2011 by peer professional opinion as competent practice in a rural setting.

54 In considering the issues, I should record that I was generally more assisted by the reasoning proffered by Associate Professor Roche, Associate Professor Hollands and, in most respects, Dr Greenberg, and I prefer their evidence to that of Dr Conrad where there is a conflict.

55 I have noted that Dr Conrad's evidence was largely based upon his experience as a surgeon at Nepean Hospital, a large tertiary referral centre at Penrith, and he was giving evidence as to his expectations of the behaviour of Registrars and other doctors working in the Emergency Department of that hospital, which was of course a far different situation to the rural environment in which Dr Scholtz practiced.

56 To a certain extent, Dr Conrad's views, expressed in his reports, were based on incorrect assumptions. Firstly, he was asked to assume that the CT scans showed that the plaintiff was suffering from a burst appendix and an emergency operative treatment was scheduled, which became open surgery revealing a perforated appendix. None of those assumptions were supported by the documents. Contrary to the instructions given to Dr Conrad, the CT scan demonstrated an intact appendix, the appendix had not burst (as agreed by the experts) and the appendicectomy was not done as an emergency procedure (as also agreed in question 8).

57 Dr Hollands and Dr Greenberg are general surgeons in active practice. Dr Hollands has a particularly impressive CV, as befitting his office as current President of the Royal Australasian College of Surgeons.

58 I was impressed with the manner in which Associate Professor Roche, Associate Professor Hollands and Dr Greenberg gave evidence in the concurrent session and I found a significant degree of consensus in the views expressed by those practitioners.

59 I bear in mind that the focus is always on the position of a reasonably competent practitioner in the circumstances faced by Dr Scholtz.

60 Dr Roche said:

What I'm trying to look at as a rural doctor is did this doctor do a reasonable job of this in diagnosing it under difficult circumstances? And I come back to the fact that I think that a reasonable job was made of diagnosing it, and only looking in that cold light of retrospectivity, which of course is 20/20 vision, could we see that removing it days earlier may have been a benefit, and only may, not definite.

61 The first issue also involves consideration of whether Dr Scholtz should have done something to ensure earlier attendance by the plaintiff at Wagga Hospital for the CT scan.

62 The answer to that issue is largely determined by the opinions expressed in answer to question 3 in the conclave. Dr Conrad said simply that either of the presumed conditions would have been better treated in a major hospital and a transfer to Wagga would not have constituted a major problem. However, as Mr Barnes submits, the prospect that better treatment might have been afforded to a patient does not constitute a breach of duty of care in these circumstances.

63 Dr Scholtz first decided to send the plaintiff to Wagga for a CT scan on the morning of 7 July 2011, to confirm his diagnosis of cholecystitis or to exclude any other pathology. He said that it was the usual practice to do the CT on the same day. He was surprised to see the plaintiff still at Cootamundra Hospital on the morning of 8 July 2011 as he thought that she would have been to Wagga by then. His expectation was that if the CT could not be done on the same day he made the request, his nursing staff would advise him of that fact. However, he said that in this case the appointment was made for the next day 'because of the stable patient'.

64 Mr Campbell submits that that answer is inconsistent with his subsequent explanation being that probably Wagga could not fit the plaintiff in for a CT scan on the day requested. I do not see any necessary inconsistency in those answers, and there is a considerable body of evidence to support the assertion that the plaintiff was relatively stable. I have already referred to some of that evidence in paragraph 53 above.

65 Firstly, the general observation chart showed the plaintiff's temperature reducing and stabilising. Second, the plaintiff was observed to be walking out of the ward for cigarettes and working on her laptop, in fact doing a job application.

66 Associate Professor Roche said that she was relatively stable in terms of her fever which had started to resolve, suggesting that the antibiotics were working, her complaints of pain remained about the same, she was well enough to go outside and smoke regularly and spend periods of time working on a laptop. He said that did not ring any alarm bells which required the patient to be sent off sooner. In summary, he said there were three very objective, rather than subjective signs that the patient was at least stable and maybe even improving while at Cootamundra. Her blood pressure had come down, her temperature was settling and her heart rate was settling. The plaintiff denied that she had gone outside for a cigarette. However I am content to accept the observations in the contemporaneous nursing notes to the contrary.

67 The nursing notes on 7 July 2011 record that "CT scan booked at WWBH for 1200hrs tomorrow 8 July 2011. Patients partner will transport patient to appointment". The evidence establishes that the plaintiff was relatively stable and it is a reasonable inference to draw that the nursing staff had contacted Wagga Hospital, explained the request, and been given the first available CT booking which was for noon on 8 July 2011. I therefore cannot see any basis for concluding that Dr Scholtz should have done anything further to ensure that the plaintiff was subject to a CT scan at any earlier time.

68 The essence of the submission put by Mr Campbell was that as Dr Scholtz had failed to diagnose the possibility of appendicitis, he did not attach the requisite degree of urgency to the matter. Alternatively, if he had made such a diagnosis he would have transferred her to Wagga earlier and expressed greater urgency to the nurses. Meantime the plaintiff remained in hospital thinking she had gallstones or a gall bladder infection.

69 Associate Professor Roche said that the question of referral for radiology such as a CT scan has to been seen in the context of whole patient. One has to ask whether the patient's condition is deteriorating or are they remaining stable, and if stable it is not uncommon for a referral centre to delay a test for a day or two because of a lack of availability.

70 Associate Professor Hollands gave a number of convincing reasons in evidence which expanded on the answers set out above in the joint conclave report. He said that the best working diagnosis here was that of acute cholecystitis. Examination of a patient such as this plaintiff with an elevated BMI was much more difficult. Secondly, the retrocecal appendicitis does not have the classical symptoms of acute appendicitis. He noted that when the CT scan was done the surgical registrar actually considered a diagnosis of caecal cancer. He said this was not a straight forward case of acute appendicitis which was free hanging in the abdomen, this was a much more complex and difficult perspective. He well understood the steps undertaken by the different stake holders at different points in the plaintiff's care, as reflecting the difficulty of the pathology and the difficulty of the co-morbidity of the plaintiff, and that it was necessary to take these matters into account.

71 Dr Conrad firmly stated that he took a very different point of view to that of Associate Professor Roche and Associate Professor Hollands, and he did not agree that it was a very complex issue. He said that 98% of patients with an elevated white blood cell count would be either acute cholecystitis or acute appendicitis and he was unable to differentiate between them. His view was that best practice was to transfer a patient to the nearest regional treatment centre. He would not address the proposition put to him that this was a matter about which reasonable minds might differ.

72 In contrast, Dr Greenberg, who was called in the plaintiff's case conceded that the diagnosis of the acute abdomen is a very complex thing, it is subjective and can be interpreted by different people in different ways. While he said that on presentation "in my mind she's really got appendicitis until its actually ruled out" he did not say that the diagnosis of cholecystitis was wrong and as it is difficult to tell the difference between the two either diagnosis is perfectly acceptable. He disagreed with Dr Conrad's view that the plaintiff should have been transferred earlier, it being reasonable for Dr Scholtz to treat her with antibiotics and see her on the next day. He also recognised that Dr Scholtz made a reasonable assumption in his assessment and he did not criticise treatment with antibiotics.

73 Although the defendants pleaded a reliance on Section 5O Civil Liability Act as asserting that Dr Scholtz acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice, Counsel agreed that it was not necessary for me to make any findings as to that matter.

74 Turning to the second issue, the plaintiff's case is that a delay of between 24 and 30 hours caused a physical deterioration in the appendix.

75 It is agreed that any alleged delay in performing the CT scan did not result in the plaintiff having a burst appendix. However, the plaintiff's case, based solely upon the view of Dr Conrad, was that such delay caused post operative wound infection. Dr Conrad says that the delay was probably responsible on the grounds that the more severe the appendicitis the more there is a likelihood of post operative wound infection. That view must be considered in light of the circumstance that Dr Conrad had not taken a history from the plaintiff or examined her, he had not reviewed the clinical notes of Wagga Hospital or the treating doctors at Wagga and, he could not comment upon the plaintiff's post operative outcome. His opinion involved a degree of speculation leading to the conclusions that she "would have had a better outcome", "would have needed a smaller incision' or "would have had an easier post operative convalescence". Dr Conrad was not instructed as to the extent of the surgical incision, there was no evidence before him of her post operative convalescence and his opinion as to the prospect of the plaintiff developing post operative adhesions was particularly problematic. He was unable to express a view as to the likelihood of such adhesions developing or the time in which such adhesions would emerge. Even if the prospect of developing adhesions were quantifiable, there is no evidence as to the impact of any such adhesions upon the plaintiff.

76 On the contrary, I am persuaded by the view of Associate Professor Hollands that there was no increased risk of developing adhesions as a result of any delay in performing the CT. He said that the plaintiff had localised appendicitis and there was no contamination of the appendix spilling contents into the abdominal cavity according to the operative findings and the report of the pathologist. He also noted that every single patient who has an operation probably develops adhesions regardless of whether it is complicated or not. The risk of developing adhesions is increased by handling tissues, bleeding, infection and an individual variability between patients to the propensity to get adhesions. He said the vast majority of patients do not develop adhesion related problems.

77 I also accept the view of Associate Professor Hollands, supported by the view of Associate Professor Roche, that post operative wound infection was not due to any delay in performing the CT. He said that it was very difficult to ascribe a wound infection solely to the appendicitis and it was drawing a long bow to say that wound infection occurred because of any delay in performing the operation. [A fortiori in the case of any delay in the CT].

78 The case against the second defendant was based purely on an assertion in paragraph 8 of the statement of claim of vicarious liability for the acts or omissions of Dr Scholtz, when he was allegedly employed by the hospital. There was no pleading that the hospital breached a non delegable duty of care owed to the plaintiff. Mr Barnes submitted that the evidence did not establish an employment relationship or any basis for a finding of vicarious liability, and that the hospital was therefore entitled to a verdict with costs. Mr Campbell did not address on this issue until it was raised by me during submissions. With leave, Mr Campbell filed a further written submission to which Mr Barnes replied.

79 Mr Campbell's submission was that following the admission of the plaintiff on the evening of 6 July 2011 the hospital owed the plaintiff a non delegable duty of care, relying upon Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542. Mr Campbell further relied upon Elliott v Bickerstaff [1999] NSWCA 453, without reference to any particular passage in the judgment, simply noting that the case contained a discussion in relation to the non delegable duty of care of a hospital. As there is no pleading of non delegable duty of care, and the issue has not been agitated in submissions except to the very limited extent set out above, I do not propose to embark upon an analysis of that issue.

80 Although Mr Campbell's submissions did not address the issue of vicarious liability which is the subject of a pleading, I will proceed to make a finding on that issue. Mr Barnes had pointed to the passage in the judgment of Reynolds JA in Albrighton as follows:

'The problem is to be solved by looking at the evidence in this case to ascertain what it is capable of showing as to the relationship between the hospital and the doctors, however they may be described. That evidence consists of the account of their activities within the hospital, their use of, and their compliance with hospital forms and routines, and the operation of the by-laws which were admitted in evidence.....' [at page 559C-D]

81 The only evidence which could possibly be relevant to this issue is that appearing at T56.25 - T57.5. In summary, there are about six general practitioners in Cootamundra and each doctor has a Visiting Medical Officer appointment to serve the hospital on a rostered basis. I accept Mr Barnes' submission that as the plaintiff was on notice that the hospital denied that it was vicariously liable for Dr Scholtz, the onus was on the plaintiff to adduce evidence and submission in support of that plea. Having failed to do so the assertion of vicarious liability must fail.

82 It follows that I would answer both issues adversely to the plaintiff, and there will be a verdict for the first and second defendants.

83 I am required to contingently assess damages.

84 The latest version of the particulars, and the plaintiff's schedule of damages, adumbrate a modest claim for non economic loss, past loss of earnings and out of pocket expenses. A claim for future psychiatric treatment was abandoned, and a claim for future treatment for adhesions has no evidentiary support.

85 The principal claim appears to be based upon a diagnosis by Dr Akkerman of major depression following his examination of the plaintiff on 30 January 2012. He recommended psychiatric consultations and anti depressant medication for two years at a cost of $400 per month. There is no evidence that the plaintiff had any such treatment or intends to have any such treatment.

86 Although the psychiatric evidence does not attribute the major depression to any alleged breach of duty, the claim seems to be based on the plaintiff's perception of the effects of delay and her understanding of what happened in the surgery. She said that she had been told by the operating surgeon "my appendix had been blown apart basically; it was in half a dozen pieces, was gangrenous, and I was made of tough stock. I was lucky to be here". She felt thankful that she was still here, she was very anxious and she thought that her children could have been left as orphans. Another version of her understanding was recorded in the report of Dr Greenberg as follows "Donna you are from tough stock. It was a mess inside and you were full of infection and you had a burst appendix and peritonitis for a couple of days". The plaintiff said she gave a similar history to Dr Parmigani, a psychiatrist who she had seen at the request of the defendants. No report from Dr Parmigani was tendered and I accept Mr Campbell's submission that a Jones v Dunkell inference is appropriate in those circumstances. However, it will be noted from the agreed findings that the plaintiff's understanding of what she was told by the treating surgeon could not have been factually accurate.

87 She said that as a result of her ordeal she was emotionally all over the place and traumatised. She was depressed and anxious up until January 2012 but things did improve and she went back to work.

88 When the plaintiff was examined by Dr Akkerman she reported nightmares about twice a week, anxiety and worries about her children getting ill. She offered other symptoms of depression in response to specific questioning.

89 As Mr Barnes submitted, the history given to Dr Akkerman was that the CT scan had shown a perforated appendix. That history was incorrect as the CT scan demonstrated an intact appendix and perforation was only noted in the post operative pathology report.

90 Although the report of Dr Akkerman is very light on detail, he does say that the major depression is consistent with the history given, and I would interpret that as meaning the depression arose as a result of the plaintiff's perception of what happened to her. I would accept that the principal effects of the depression lasted for about six months, and there may be some modest continuing symptoms, as she is fearful and suffers anxiety attacks.

91 Taken together with the limited effects of the post operative wound infection which had resolved with treatment within a month of surgery, I would assess non economic loss at 20% of a most extreme case, being $19,500.

92 The evidence as to the plaintiff's employment is, to say the least, imprecise. Her claim is for $362.70 for six months, based on the plaintiff's asserted inability to take up an offer of a paid position at the E A Southey School in Cootamundra. Prior to surgery the plaintiff said she was working at a primary school as a teachers aide and aboriginal education worker for 10 hours per week. She had only been working there for a short time. She expected to start work at the E A Southey School earning $27.90 per hour. She did not work until February 2012 when she commenced work at Charles Sturt University in February. She resumed her studies in the hope of obtaining a Masters Degree.

93 The fact that the plaintiff had been using a laptop while in hospital on 7 July 2011 in order to submit a job application for employment at the University in Wagga, complicates matters somewhat, as it is inconsistent with her earlier assertions about employment. Further, there is a report from Dr Davis in the plaintiff's case which records a history that at the time of the accident she was unemployed and when this matter was raised with the plaintiff she said that she was volunteering at Southey for a week and she had in fact been employed for about a month.

94 The plaintiff's evidence was that she did not work for the balance of 2011, and it would unreasonable to conclude that this was other than due to the effects of the surgery and is sequelae even though the examination in chief did not precisely direct her attention to that question. In view of her evidence as to pursuit of tertiary studies and various forms of employment, I am prepared to accept that the plaintiff would otherwise have been working for that period. I would therefore allow the $10,000 claimed being loss of earnings at $362 per week for six months plus superannuation.

95 It was agreed that past out of pocket expenses totalled $308.85. Any verdict for the plaintiff would therefore be a total of $29,808.85.

Orders

(a) Verdict for the defendants.

(b) Plaintiff to pay the first defendant's costs on an ordinary basis up to 13 September 2012 and on an indemnity basis from 14 September 2012.

(c) Plaintiff to pay the second defendant's costs on an ordinary basis up to 7 November 2012 and on an indemnity basis from 8 November 2012

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Amendments

01 July 2014 - Typographical error
Amended paragraphs: 64

01 July 2014 - Typographical error
Amended paragraphs: Order (c)

Decision last updated: 01 July 2014