Fischer v Brown  VCC 104
On 22 January 2021, His Honour Judge Pillay of the Victorian County Court handed down a decision concerning a plastic surgeon's post-operative treatment of a plaintiff who underwent breast reduction surgery and later suffered a breast injury.
The central issue was causation. The court found that the surgeon's post-operative assessment was correct and did not cause the breast injury. The court accepted that the injury could have been caused by risks assumed by the plaintiff and the surgeon did not negligently fail to properly advise her of such. The court arrived at this conclusion by accepting the surgeon's evidence as consistent and reliable because:
- the surgeon relied on accurate and detailed clinical notes;
- the surgeon's oral evidence was consistent with the other documentary evidence; and
- the surgeon's evidence was supported by medical experts.
Mr Brown performed breast reduction surgery on Ms Fischer on 7 July 2016. Ms Fischer claimed that Mr Brown negligently failed to recognise and treat venous congestion that arose in her right nipple after the surgery. As a result, her right nipple areola complex (NAC) died, which required her to endure numerous corrective surgeries.
The evidence of the parties was crucial in determining the following central issues:
- Whether Mr Brown instructed Ms Fischer that it was acceptable to reduce her smoking to four or five cigarettes per day rather than stopping completely.
- Whether Mr Brown's post-operative observations regarding the healthy state of Ms Fischer's NAC were correct considering her consistent complaints regarding pain and swelling.
- Whether the nurse advised Ms Fischer that it was acceptable to take a "sparrow bath", after which she noticed the deterioration of the NAC.
Accurate clinical records are persuasive evidence
The court found that Ms Fischer's version of events was unreliable, primarily because it was contrary to Mr Brown's clinical notes and the medical evidence in the case. The court found that the clinical notes were a good indication of the clinically significant issues because they were:
- a contemporaneous recording used to accurately chart the clinical progress of the patient; and
- largely consistent with the nurse's contemporaneous notes.
The court's acceptance of the clinical notes undermined Ms Fischer's claim because:
- the clinical notes demonstrated that Mr Brown had warned Ms Fischer that smoking may impact on the viability of the NAC. This was strengthened by evidence that Mr Brown gave Ms Fischer a pamphlet which further explained the need to stop smoking before surgery. Given this, the court found it implausible that Mr Brown would have advised Ms Fischer that it was acceptable to reduce smoking to only four or five cigarettes per day.
- neither Mr Brown's nor the nurse's clinical notes referred to the level of pain that Ms Fischer said she experienced. The court accepted that the nurse reliably recorded clinically significant events, making it unlikely that Ms Fischer had significant pain and swelling, given no such pain and swelling was recorded.
- it reduced the significance of the evidence brought by Ms Fischer's family members, who testified to her pain, because the pain was not recorded in the clinical notes.
Inconsistencies in the plaintiff's evidence demonstrate unreliability
Ms Fischer's claims were found to be inconsistent and contradictory, resulting in the court finding her evidence unreliable. For example:
- Ms Fischer claimed that she had stopped smoking prior to the surgery, which was inconsistent with her claim that she was not warned of the risks associated with smoking. It was also inconsistent with a letter from her subsequent surgeon stating that Ms Fischer had been smoking at the time of surgery, which was information provided to him by Ms Fischer.
- Ms Fischer claimed she was provided with Endone well into 2018 but this was inconsistent with her evidence on cross-examination.
- Ms Fischer claimed she took a "sparrow bath" (where the water did not touch her breasts) on the nurse's advice that this was acceptable. This was contrary to the nurse's evidence that she had never heard of a "sparrow bath". It was also contradictory to Ms Fischer's reason for taking a bath, which was to warm her breasts and evidence that she told nursing staff that she had taken a "hot steamy bath".
Photographs may be an unreliable medium for an expert's assessment
After reviewing photos of Ms Fischer's breasts, one expert formed the initial view that the NAC had died one day after surgery. However, the photos were zoomed in and pixelated, which had changed the colour and depiction of the swelling. The expert changed his view after receiving the same photograph without zoom. Another expert suggested that the photos were in the "grey zone" and could not be relied upon.
The difficulty in diagnosing from a photograph directed the court to place greater reliance on Mr Brown's clinical judgment.
The decision to dismiss Ms Fischer's claim was based on:
- the reliability of Mr Brown's evidence, primarily due to the accuracy of his clinical notes, consistency of evidence and the supporting evidence of medical experts; and
- the unreliability of Ms Fischer's evidence, primarily due to her contradictory version of events, inconsistency of evidence and lack of supporting evidence of medical experts.
The evidence accepted by the court showed that Mr Brown's assessment of the NAC was correct and there was no reversible cause. Therefore, it was more likely that a supervening event, such as Ms Fischer's smoking or hot water contact from the "sparrow bath", caused her injury.
This decision reinforces the view that recording detailed and accurate clinical notes can be of great assistance to a clinician or hospital in defence of a negligence claim.
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