Judge Davis of the District Court rejected Ms Lentzner’s medical negligence claim against general surgeon, Max Baumwol, delivering her decision on 6 November 2009.

Ms Lentzner’s claim alleged that Mr Baumwol was negligent in the manner in which he sought to perform repair of bilateral inguinal hernias in 2003.  For an explanation of surgery (albeit laparoscopic so different from in Ms Lentzner’s case) to repair inguinal hernias, see here.

The primary allegation was that such repair ought to have utilised mesh to repair the relevant hernias and not, consisted only of surgical suturing of the relevant hernias.  It was said that if this had occurred, the relevant hernias would not have recurred.

Judge Davis [55] concluded that Ms Lentzner’s account of events was in some respects unreliable, though she accepted Ms Lentzner believed the truth of what she said.  This was based on Judge Davis conclusion that Ms Lentzner’s claims as to very severe pain immediately following her surgery were unreliable, because the observations recorded in the hospital records did not suggest anything out of the ordinary.  Judge Davis emphasised hospital staff’s appreciation of the importance of the accuracy of records, as reason she could confidently conclude that if Ms Lentzner’s claimed symptoms had been present, they would have been reported.

Despite clear inconsistencies between his claims as to the method of repair of 1 hernia and the contemporaneous records, Judge Davis accepted Dr Baumwol’s claims as to the manner in which he performed such repair, based only on his claims as to his usual practice [111].  

This, with respect, was generous to him.  If inconsistency with the records was enough to reject Ms Lentzner’s claims (as set out above), why was such reason not reason to reject Dr Baumwol’s claims, which were not even asserted to be based on recollection, but of ‘usual practice.’

In accordance with the majority of expert evidence before her, Judge Davis accepted that Dr Baumwol’s decision to repair the hernias using sutures and not mesh, was reasonable.  The experts agreed that there was no hard evidence available at the time (or now) suggesting a benefit to one technique over the other (though interestingly, and this matches my uninformed understanding, they accepted that since 2003 there had been a move towards greater use of mesh, particularly as problems relating to infection with mesh at that time had been reduced).  Judge Davis concluded:


I find that the evidence from the experts establishes that whether to use mesh in these repairs involves a matter of clinical judgment on which reasonable minds might differ

 Consequently this basis of alleged negligence failed.

Based on the same medical evidence, Judge Davis dismissed the claim that there was an obligation to warn Ms Lentzner that if mesh were used to repair her hernias, this would reduce the risk of recurrence.  The evidence before Judge Davis did not support this conclusion that such a reduced risk would apply.

Of significance, Dr Archer, a surgeon relied upon by Ms Lentzner who had operated upon her following Dr Baumwol’s care, gave clear evidence at trial that the problems he identified were not, as Ms Lentzner’s case alleged, a recurrence of the hernias that had been treated by Dr Baumwol [R80].  This was really the end of Ms Lentzner’s case, because if her hernia did not recur, she had little claimed consequence of any of the alleged shortcomings in her care.

All in all an unhappy experience no doubt for Ms Lentzner.

From a legal principle perspective, the case included 2 further interesting issues:

1) The case included an interesting examination of the capacity for a psychologist to provide expert evidence concerning diagnosis.  Traditionally this has been an area in which psychologists (I have thought unfairly) have been held unable to give expert evidence.  This issue was identified but not decided by Judge Davis in relation to evidence of diagnosis based on knowledge of DSM IV on the part of a well known local psychologist, Bill Douglas.

2) the case confirmed the traditional 30% discount for early receipt of past lost superannuation benefits is now too great.  Judge Davis, in accordance with submissions from both Counsel accepted that a rate of 15% was now reasonable (in her provisional assessment of damages).