A medical negligence case involving surgical complications and allegations of bias by the judge relates to an injured plaintiff, Ms Polsen, who was unsuccessful in her medical negligence claim against Dr Harrison who performed a gastric sleeve procedure upon her in 2013. A summary of some of the judgments relating to this case is below.
Polsen v Harrison [2021] NSWCA 23 (3 March 2021)
Ms Polsen appealed to the NSW Court of Appeal claiming that the judge was biased against her since she made remarks about the evidence from Dr Smith, an expert psychiatrist hired by Ms Polsen’s lawyers including that Dr Smith’s participation in the conference of experts amounted to “advocacy in the extreme.”
Ms Polsen was unsuccessful in this appeal.
Polsen v Harrison (No 5) [2021] NSWSC 244 (16 March 2021)
Ms Polsen made another application for the judge to recuse /excuse herself from hearing her case. She alleged that the judge had apprehended bias and could not be impartial since their tipstaff attended a directions hearing in court for the defendant two years prior.
Ms Polsen was not successful in this application which was refused.
Polsen v Harrison (No. 8) [2023] NSWSC 764 (6 July 2023)
The injured plaintiff, Ms Polsen was unsuccessful in this medical negligence claim against the defendant, Dr Harrison who performed a gastric sleeve procedure on 22 July 2013 (“the procedure”) to manage her morbid obesity.
Ms Polsen alleged that she was injured due to the negligence of Dr Harrison for:
- Selecting her as an appropriate candidate for the procedure instead of referring her for psychological counselling and delaying the procedure given her pre-existing long-term alcohol abuse and liver dysfunction; or
- Failing to inform her of the risks of the procedure, including the risk of a gastric leak (or more correctly, a staple line leakage). Ms Polsen alleged that if she had been informed of the risks, she would not have undergone the procedure; or
- Negligently performing the procedure, causing a gastric leak at the site of the surgery, ongoing illness and the need for further surgeries; and
- Failing to detect that she a staple line leakage and failing to treat it earlier.
Ms Polsen’s evidence
Often judges must decide whether to believe the patient, or doctor in medical negligence claims involving failures to inform about risks of procedures.
Evidence given by Ms Polsen about her alcohol consumption prior to the procedure and what she told Dr Harrison about this was relevant to proving whether Dr Harrison should have recommended that she have the procedure. The Judge decided that Ms Polsen’s evidence about her alcohol intake and what she told people about this was unreliable due to many reasons including that her evidence in court at the hearing was inconsistent and contradicted what Dr Harrison and two nurses recorded at the time they obtained a history from Ms Polsen.
The husband and children of Ms Polsen gave remarkably similar evidence to Ms Polsen but the Judge expressed doubts about the accuracy of their evidence. The judge noted that Ms Polsen’s husband was often away for work during the week so it is difficult to see how his evidence could be based on first hand observations as to how often he saw her consuming alcohol. The Judge suspected that Ms Polsen lied to herself and others about her true alcohol consumption, including her lawyers and doctors.
The Judge also did not believe Ms Polsen’s evidence that the dietician did not discuss the weight loss procedure since the assessment notes from the consultation were very comprehensive.
After consulting with the dietician and a nurse, Ms Polsen consulted with Dr Harrison once before the procedure. The Judge accepted that Ms Polsen was determined to have the procedure. Dr Harrison gave evidence that he informed Ms Polsen that every surgery has risks and complications including a risk of a staple line leak occurring after the surgery if healing is an issue. Ms Polsen alleged that Dr Harrison did not discuss the risk of a leak following the surgery. The Judge believed Dr Harrison’s evidence and found that Ms Poslen had very little recollection of her consultation with Dr Harrison.
Ms Polsen volunteered when giving evidence in court that her “memory is really bad.” The Judge accepted this and noted that the consequence however was that she could not be relied upon at all as to what was said, or not said.
Expert conclave
 A conclave (conference) was held between the experts hired for Ms Polsen and the experts hired for Dr Harrison so that the experts could prepare a joint report to the court. Ms Polsen’s experts were given a document with assumptions for the conference which was not given to Dr Harrison’s experts. The Judge noted that this practice should never take place. Any assumptions must be given to all experts.
These assumptions included that Ms Polsen was given no advice to reduce her alcohol consumption and that the consultations with the dietician and bariatric nurses were “brief”. The judge found that none of these assumptions given to Ms Polsen’s experts were established as accurate.
 Decision
The judge found that:
- The amount of alcohol Ms Polsen took at any given period of time could not be established since she was an unreliable historian.
- There was no failure to warn Ms Polsen of the many risks of the gastric sleeve procedure, including the risk of a gastric leak because she was comprehensively warned of the risks. The judge rejected Ms Polsen’s evidence about this and found that she was determined to have the procedure despite being warned of the risks because she saw how well it had worked out for her friend.
- Ms Polsen’s injuries were not caused by any failure to refer her for psychological counselling since Ms Polsen was unlikely to hire a psychologist anyway.
- Dr Harrison performed the procedure appropriately.
- Ms Polsen was an appropriate candidate for the procedure, there was nothing in her history regarding her alcohol intake or psychological history that made it unreasonable to recommend and perform the procedure. The Judge rejected the evidence of the experts to the extent that they believed the procedure should be delayed for psychological assessment.
- It was appropriate to discharge Ms Polsen on 25 July 2013. The post-surgical bleeding had stopped. A haematoma was found and appropriately treated. Gastric leak was a known complication of the procedure which was found and appropriately treated.
- Dr Harrison was not responsible for the inherent risks of the gastric sleeve procedure and the stormy post operative course that followed it, which Ms Polsen was warned of.
- Ms Polsen was reasonably treated after the procedure.
The full judgement.
Practical points in the medical negligence case:
- The success of medical negligence claims depends a lot on the relationship between the client and their lawyers which is crucial to ensuring an honest history is obtained from the client and all evidence and documents are thoroughly explained to the client so they are as prepared as they can be when giving evidence in court. It is important to hire a lawyer you are comfortable with, who will give realistic advice about the strengths and weaknesses of your case, instead of telling you only what you want to hear.
- Where there is a factual dispute about what did, or did not happen, Judges often believe the evidence of people who have made contemporaneous records at the time of the events as memories can be unreliable, especially after years have passed.
- The facts and assumptions provided to experts are crucial as experts’ opinions can change if those assumptions are incorrect and the medical negligence claim can be lost if the Judge decides that the assumptions are not accurate. This makes it more important to have highly experienced lawyers who specialise in medical negligence claims who understand what evidence and assumptions should be provided to experts to reduce the chance of losing.
 How can Stacks Goudkamp help?
If you think you have suffered an injury due to the negligence of a surgeon, doctor or health provider, you could have a potential medical negligence claim. You should call Alicia Wong, Practice Group Leader of our Medical Negligence team on 9237 2222. Alicia is a lawyer who practices exclusively in medical negligence and is an Accredited Specialist in Personal Injury. If we can assist, we will act on a “no win, no fee” basis.
