Case

Ljubic v Armellin [2009] ACT 21

Summary

Facts

In June 2003, Mrs Dragica Ljubic, a 44 year old woman who had migrated to Australia from Croatia when she was 19,  attended her general practitioner complaining of menstrual issues. Investigations revealed a bulky uterus, and she was referred to Dr Armellin, a consultant obstetrician and gynaecologist.

Mrs Ljubic attended Dr Armellin’s consulting rooms on 20 November 2003.

There was a conflict about what happened and what was said during that consultation.

Dr Amellin’s evidence

Dr Armellin gave evidence that he had recommended hysterectomy for Mrs Ljubic based on her symptoms. He gave her a pamphlet that included the statement that ‘If the ovaries are removed during a hysterectomy in a pre-menopausal woman, the level of female hormones in the blood would decrease quickly and this will cause symptoms of the change of life.’

He said that he asked Mrs Ljubic what she would like to do, and she replied that she would like to have a hysterectomy. He said that a discussion also took place regarding whether or not the ovaries should be removed, which involved him telling her that some patients elected to have them removed to avoid cancer but that she was a young woman and probably did not need to have her ovaries removed. By the end of the discussion, he had formed the opinion that Mrs Ljubic did not want her ovaries removed. Dr Armellin then had Mrs Ljubic sign a consent form for a total abdominal hysterectomy.

Dr Armellin said that after the completion of the consent form Mrs Ljubic raised the issue of removal of the ovaries again, and said that she was concerned about cancer. Dr Armellin’s evidence was that they discussed the risks associated with removal, and the possibility of having to take hormone replacement therapy. His evidence was that he then said to Mrs Ljubic ‘You’ll have a hysterectomy, what do you want to do about the ovaries?’ and she replied ‘Take it all out’.

Dr Armellin dictated a letter to Mrs Ljubic’s general practitioner after the consultation and of note he said ‘We did discuss the question of the ovaries and she tells me she wishes to have them removed’ and ‘I have had a long discussion with her regarding the operation, its cost and potential complications and I have also given her literature regarding the hysterectomy.’

Mrs Ljubic’s evidence

Mrs Ljubic stated Dr Armellin informed her that as she had fibroids and the only practical option was to remove the uterus. Mrs Ljubic’s evidence was that she said to Dr Armellin that he was not going to touch her ovaries and he replied in the affirmative. Mrs Ljubic said arrangements were then made for the operation, Dr Armellin showed her a diagram and she was then asked to sign a consent form. She denied that there was any discussion about removal of the ovaries negating the risk of ovarian cancer in the future. She categorically denied that she raised the question of ovarian cancer at the end of the consultation. She denied saying to Dr Armellin “take the whole lot out”.

On the day of the operation

Dr Armellin’s evidence was that he saw Mrs Ljubic in the anaesthetic room shortly before the operation. He then specifically asked her if she was still happy to have her ovaries removed. The reason he asked the question was that he looked at the operating list and noticed the operation identified was total abdominal hysterectomy with no mention of the ovaries. Mrs Ljubic replied in the affirmative to Dr Armellin’s question.  Mrs Ljubic had no recollection of this conversation.

After the operation

After the operation, Dr Armellin wrote to Mrs Ljubic’s general practitioner and noted ‘both ovaries appeared normal and at her request I removed them’. Following Mrs Ljubic’s discharge she saw her general practitioner. Her general practitioner informed her Dr Armellin had removed her ovaries. Mrs Ljubic was shocked to hear this. She subsequently experienced symptoms of menopause, and her relationship with her husband suffered.

She went to see Dr Armellin, and gave evidence that he apologised a number of times for the misunderstanding.

Dr Armellin wrote to Mrs Ljubic’s general practitioner stating:

‘There seems to be some major confusion about Dragica’s operation as when I saw Dragica we had a long discussion regarding her operation (as you will read on my letter dated 21 November 2003). …Dragica tells me now that she actually meant the uterus and the fibroids but not the ovaries… Dragica was quite distressed that the ovaries were removed and all I could do was apologise for the misunderstanding. In my defence I honestly felt (and recorded) that she wished the ovaries to be removed so obviously there was a communication problem in that area….’

Held

The Court found that Dr Armellin did not have consent to remove Mrs. Ljubic’s ovaries.

In arriving at detailed factual findings, the Judge Master Harper was influenced by two matters.

The first was the plaintiff’s reaction when she realised, during her visit to Dr Yeung’s surgery early in December 2003, that her ovaries had been removed. He accepted unreservedly that this was the first the plaintiff knew about it, that she had not intended to agree to it, and that it came as a genuine shock to her to discover what had happened.

The second matter was the evidence about Dr Armellin’s response during his discussion with the plaintiff and Mrs Domazet. He was satisfied that Dr Armellin was similarly surprised and indeed shocked to discover that there was any issue about consent to the removal of the ovaries. He was satisfied that Dr Armellin went into the operating theatre believing that he had the plaintiff’s consent and authority to remove her ovaries.

The Judge found that it followed that there was a misunderstanding, and a very serious one with irreversible consequences.

He was however satisfied that the plaintiff left the consultation having, in her mind, authorised and consented to surgery for the removal of her uterus and cervix, but not the removal of her ovaries. Further, the hospital forms that were sent to the hospital, which brought documentation into existence based on the proposed surgery were simply for the total abdominal hysterectomy. They did not evidence consent to the removal of her ovaries, and any conversation had appeared to have continued the misunderstanding.

Without consent, the removal of the ovaries amounted to a breach of the surgeon’s duty of care to the patient, and, as a matter of law, to a trespass to the person of the patient.

The plaintiff was awarded $170,200.00.

Key Information

Court:

Supreme Court of the ACT.

Judges: 

Master Harper

Issues:

Consent; Removal of Ovaries

Trespass; Negligence

Full Case online:

Austlii – Ljubic

Case Citator:

n/a

(although appeal re award, which failed may be found here.