Supreme Court finds in favour of Wagga surgeon Richard Harrison in failed negligence lawsuit

The NSW Supreme Court has found in favour of bariatric surgeon Richard Harrison, who was sued by a former patient who suffered complications post-weight loss surgery carried out in 2013.

Wagga woman Katrina Polsen claimed negligence in the operation itself, subsequent and delayed treatment, that she should have been counselled and the entire procedure delayed, and that she was not properly informed of the associated risks.

Ms Polsen lodged the initial claim with the NSW District Court in 2016, with the matter undergoing multiple revisions and eventually going to trial in February 2021. Ultimately the lawsuit was heard over 28 days in five hearing sittings between February 2021 and October last year.

Supreme Court Justice Julia Lonergan found in favour of the plaintiff, Dr Harrison, in a decision handed down on July 6, and ordered Ms Polsen to pay the surgeon's costs of the proceedings.

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Dr Harrison performed the sleeve gastrectomy on Ms Polsen - whose BMI classified her weight as morbidly obese - in July 2013.

However the then 41-year-old's post-operative experience was not positive, with a gastric leak identified within a fortnight after the surgery, as well as pancreatitis, gallbladder removal, gastric fistula, sepsis, severe malnutrition and multiple admissions to hospital, with stays of up to six weeks, in the 10 months after.

In April 2014, Dr Harrison and Ms Polsen discussed how, if she continued to have a gastric fistula, it may be managed. It was raised that Dr Harrison and Williams had considered conversion Roux-en-Y management - also known as gastric bypass - once Ms Polsen was well enough nutritionally.

By August, Dr Harrison had expressed his concern the patient "would die from severe malnutrition if she did not engage on the issue".

Ms Polsen made further presentations to Wagga emergency departments through the rest of the year and was admitted to St George Hospital for a time in December.

Dr Harrison continued to treat Ms Polsen after she engaged solicitors by February 2015, and by the following July he was named as a defendant in professional negligence proceedings. Other than when he was on duty in the Wagga Base Hospital emergency department on an occasion she presented in 2016, Ms Polsen ceased consulting Dr Harrison in 2015.

She remained in the care of another general practitioner, who prepared referrals for three surgeons for treating the fistula post-gastric sleeve.

"What the evidence tendered shows is that Katrina and her GP knew she needed ongoing management, yet she appears to have delayed acting on this need," Justice Lonergan said.

Ms Polsen eventually underwent a gastric bypass - referred to in the court findings as the "definitive surgery" - in an eight-hour operation by Dr Le Page at St George Hospital in September 2017. While the surgery had a good result, it left Ms Polson with ongoing pain and opioid addiction, and she has ignored recommendations to engage in mental health treatment, the court heard.

Much of the case against Dr Harrison surrounded Ms Polsen's alcohol consumption, with her lawyers claiming he failed by not "[excluding] her as a candidate for the gastric sleeve surgery procedure on the basis of her alcohol dependence and/or consumption", and not referring her to her educational courses and psychiatric and psychological assessment.

"However Katrina gave conflicting accounts... in 2013 to Dr Harrison and his staff and others, as well as conflicting evidence at trial in relation to her alcohol use in that period and what she recalls she told Dr Harrison and his staff," Justice Lonergan said.

Ms Polsen had initially claimed she was drinking on average a glass of wine a night by 2011 and more on Fridays and Saturdays.

"During cross-examination ... Katrina said that she told [her bariatric nurse] she 'was' drinking at least a bottle of wine a night, but that she did not tell her about her heavy drinking on the weekends ... despite the fact that Katrina knew that she had to tell the nurse the truth about what she was drinking," Justice Lonergan said.

Justice Lonergan rejected submissions that Polsen was not advised appropriately of the risks associated with the surgery, accepting she had attended an education seminar presented by Dr Harrison at a club, was provided advice and documentation in appointments with Nurse Aicken, a consulted a dietitian with Dr Harrison's practice.

"On my assessment Katrina had decided the surgery was the solution to her weight issues ... and was prepared to say whatever she thought she should say to Dr Harrison and his support staff to ensure she was given the surgery," Justice Lonergan noted.

She also had a consultation with Dr Harrison, who took her through the various bariatric surgery options and where she maintained that she wanted the sleeve gastrectomy due to familiarity with others who had the same or alternative procedures.

"It is very clear that she was determined to have the gastric sleeve procedure," Justice Lonergan said.

"A selective and partial analysis of the evidence ... does little more than highlight the problems she created for her treatment course.

"The defendant's experts made it clear that even if Katrina was drinking 750mls of wine a night, the literature is inconclusive as to whether that causes healing problems and it did not make her an unsuitable candidate for the surgery she very clearly required."

Justice Lonergan found there was no failure to warn Ms Polsen of the "many risks of the gastric sleeve", that she misrepresented her alcohol intake and regardless, she would not have engaged in therapy regardless and she was in fact thoroughly warned of the possible outcomes.

"I accept the submission that Katrina was unimpressive and unreliable," she said.

"As to whether she was deliberately untruthful, it was difficult to tell."

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