Jambrovic v Day  NSWSC 1468 is a decision of particular interest as it addresses the nature of doctor’s duty to warn, including advice about surgical as opposed to conservative treatment and whether the doctor had the necessary training and experience to perform the procedure. As Justice Schmidt summarised at :
…Mr Jambrovic pursued a surgical procedure which Dr Day had neither prior experience of, or training in, when the better course would have been to wait and monitor the progress of the tumour. Had Mr and Mrs Jambrovic received that advice, or even information about the risks of the surgery when compared with the risks involved in monitoring the tumour, it is quite unlikely that Mr Jambrovic would have had surgery in March 2011.
It was common ground (at ) that there were two available courses of treatment in Mr Jambrovic’s circumstances. First, surgical removal of the tumour. Secondly, conservative treatment, involving monitoring the tumour at regular intervals. There was also no issue (at ) that Dr Day recommended that the tumour be removed by endoscopic surgery which he had not previously performed, although he had performed other endoscopic procedures. He had also removed brain tumours by craniotomy. More specifically, while to that time Dr Day had performed about 50 skull-based meningioma removals and 30 transnasal removals of pituitary tumours, this was the first trans nasal endoscopic removal of a skull base meningioma which Dr Day had performed. The Hospital had to acquire the specialised endoscopic equipment required for that surgery. In his statement Dr Day did not say that he had disclosed this to Mr and Mrs Jambrovic: . However in cross examination the surgeon claimed, for the first time, that he had conveyed to the patients that he did tell them that he had not performed the proposed operation before .
In discussing the information provided to the claimants, the court made reference to a document provided by the surgeon. However the document did not deal at all with the endoscopic procedure which the surgeon recommended. That procedure was quite different to the craniotomy described in the document, involving as it did two surgeons and the tumour being removed through the nasal passage, rather than the skull: .
In the concurrent evidence, while it was agreed that surgery was a reasonable option in Mr Jambrovic’s case, it was considered that it was unreasonable for Dr Day to have presented the alternative conservative option of observation and monitoring of the tumour to Mr Jambrovic, as a poor option: . At :
The experts further agreed that Mr Jambrovic’s tumour was not life-threatening. That is why conservative treatment is often recommended in such cases. They agreed, however, that the presence of oedema had an impact on the interval period for initial surveillance, to make sure that early or rapid growth was not present.
The surgeon accepted that it would have been improper not to have disclosed that he had not performed this surgery before (at ) and at  the court held:
The experts’ view was that Dr Day should have told Mr and Mrs Jambrovic about his lack of experience in the procedure which he recommended. What Dr Day should also undoubtedly have disclosed was that he had neither the available training nor observed the difficult procedure he recommended.
Further to the issue of whether the surgeon had the necessary skill and experience, at  – :
On the expert evidence of Professor Harvey, Dr Santoreneos and Associate Professor Weidmann, the growth rates of a benign meningioma tumour can vary from very slow, to atypical growth consistent with malignant tumours. Their location in the brain can make their surgical removal challenging, giving rise to the risks which materialised in Mr Jambrovic’s case from the procedure which Dr Day performed on 31 March 2011. Mr Jambrovic’s complications were recognised complications of that procedure, which the experts agreed occur less frequently with experienced surgeons.
This evidence establishes that the considerable risk of injury which the surgery which Dr Day undertook inevitably poses, are reduced when such surgery is performed by a surgeon trained and experienced in the procedure.
Dr Day was, undoubtedly, an experienced surgeon who considered himself qualified to undertake the procedure he recommended to Mr Jambrovic on 2 March. There was no issue, however, that he had not undertaken the available advanced fellowship training for endoscopic surgery on such a skull based tumour.
In the joint report the experts agreed that Dr Day probably did not have the experience to perform this surgery, which involved an endoscopic nasal approach to the anterior skull base, given that he was not fellowship trained in endoscopic skull based surgery; he had not observed such surgery live; nor had he performed a number of cases of intermediate complexity, other than pituitary surgery. The experts also agreed that Dr Day ought to have disclosed his lack of experience to Mr Jambrovic and discussed it with him, before the decision to have the surgery was made.
While Dr Day undoubtedly genuinely held the belief that he was appropriately qualified to have undertaken this surgery, I am satisfied that he was not, given the views to which the experts came, when considered in light of the evidence I have already discussed.
The findings on breach of duty are summarised at  – :
When all of this evidence is considered together with Dr Day’s lack of training and experience in the surgical procedure which he recommended and performed, I am satisfied that it must found that he breached his duty to Mr Jambrovic, not only in failing to inform Mr Jambrovic of his lack of experience and training in that procedure, but also in actually performing that surgical procedure.
Not only should the relative risks of a conservative approach have been more accurately presented to Mr and Mrs Jambrovic than they were at the 2 March consultation, an initial period of observation of the kind the experts agreed would have been more appropriate in Mr Jambrovic’s circumstances, was a course which Dr Day should have not only advised Mr Jambrovic about, but one which he should have recommended.
The result of Dr Day’s advice was that Mr Jambrovic was not given a real opportunity to choose between available treatment options for his condition. Nor was he properly advised about the low risks which initial conservative management in the first instance carried in his circumstances, by comparison to the high risks of the surgery Dr Day recommended.
In the result, it must also be concluded that the risks which materialised for Mr Jambrovic were foreseeable; that they were risks of which Dr Day knew, or ought to have known; that they were not insignificant; and that in Mr Jambrovic’s circumstances, a reasonable person in Dr Day’s position would have taken the precautions which the experts agreed should have been taken. They were advising Mr Jambrovic as to the preferable course in his circumstances, namely initial conservative treatment before any decision to pursue surgery was made. Further, given his lack of experience and training in the procedure he recommended, Dr Day should have also disclosed this to Mr Jambrovic and should not himself have undertaken that surgery: Civil Liability Act, s 5B.
In relation to causation, the court noted (at ) that on Dr Day’s case, the decision to proceed with surgery in order to deal with intermittent, albeit persistent headaches which the surgery might not even cure, was made despite Dr Day having advised at the consultation, about the comparable risks of the surgery and the available conservative treatment, as well as that he had never performed such surgery before. The court found that to be ‘improbable’. Then at :
On Dr Day’s own evidence, Mr Jambrovic’s tumour was a benign, slow growing tumour which might not have been causing his headaches at all and the proposed surgery might not have cured those headaches. In those circumstances, choosing surgery rather than the conservative option, which involved treating the oedema and headaches, while continuing to observe the tumour, would have been entirely irrational. On the evidence Mr Jambrovic was not an irrational man. To the contrary he had rejected Dr Day’s advice in 2009 to have other surgery, given his symptoms.
The causation analysis was further discussed at  – .