In the recent matter of Patiniotis v Garling [2025] TASFC 5, the plaintiff respondent (Ms Ann Marise Garling) commenced a medical negligence compensation claim against the defendant appellant, Dr Tony Patiniotis.
In 2013, the respondent, who was then aged 58 years, was referred to the appellant, a general surgeon carrying out colorectal surgery, in relation to some episodes of anal bleeding. He concluded that the bleeding was caused by internal haemorrhoids and recommended a procedure known as a stapled haemorrhoidectomy (PPH). He subsequently carried out that procedure at the Hobart Private Hospital on 24 September 2013. The learned trial judge gave the following description of the surgical procedure as follows at [7] – [9] of his Reasons:
The procedure uses a circular stapling device to fix the haemorrhoids to the wall of the anal canal with a circle of metal staples. It is performed under general anaesthetic. In a very general overview, the operative technique involves inserting the specially designed stapler into the anal canal for an appropriate distance, and then firing the staples into the wall of the anal canal. Upon firing the staples, the device excises a circumferential strip of redundant tissue just above the haemorrhoids. The purpose of the stapling is to return and fix the haemorrhoid into its correct anatomic position high in the anal canal. The expectation is that eventually fibrotic tissue will grow over the staples ensuring the permanent fixation of the haemorrhoid.
Prior to firing the stapler, the surgeon inserts a circumferential purse-string suture just above the apex of the haemorrhoid. The suture draws up redundant mucosa, which is then excised by the firing of the stapler. Because of the manner in which the stapler operates, the placement of the suture is directly related to the final location of the line of inserted staples (the staple line). As will become apparent, the correct placement of the staple line, and the consequences of failure to achieve that placement, are matters central to the resolution of this case.
In order to understand the context of the issues relevant to the placement of the staple line, it is necessary to touch upon some of the relevant anatomical features. A feature of importance to this case is known as the ‘dentate line’. The dentate line and its anatomical context is described by Professor Anthony Eyers, a colorectal surgeon, who was called by the plaintiff as an expert witness, as follows:
‘The anal canal is defined by its relation to the anal sphincter complex, extending from the upper limit of the sphincters (the ‘anorectal ring’) to their lower limit (the ‘anal verge’). The perianal skin (a squamous epithelium) extends into the canal (as the ‘anoderm’) for about 2cm, where its nature changes at a visible junction, the ‘dentate line’. Immediately above the dentate line there is a further 1-2 cm zone of transitional epithelium (which is not clearly distinguishable visually), above which the lining is a columnar mucous epithelium of the type found throughout the remainder of the large bowel. The anoderm has a rich nerve supply, and cutaneous sensation extends above it into the transitional zone for a variable extent, but not into the upper anal canal or rectum’.
It is a common theme in the expert evidence, that the correct placement of the staple line is important to the successful outcome of the procedure. This is best described in a joint memorandum prepared by Professor Eyers, and the colorectal expert engaged by the defendant, Associate Professor Margaret Schnitzler, as a result of a court mandated conference of experts conducted on 27 July 2022:
‘With PPH there is an optimal level for the placement of the staple line; too high and the procedure loses its efficacy in anchoring the haemorrhoids below, and too low it could impinge on the area of the anal canal with somatic sensation’.”
The respondent’s case was that the placement of the staple line within two centimetres of the dentate line would establish negligence as such a placement meant that the staples would have been inserted into the transitional epithelium, and thus that the surgeon had not taken sufficient care to avoid that zone. The appellant conceded at trial that such placement was “not ideal in terms of outcome of the operation” but disputed that this necessarily established a lack of requisite care in the performance of the procedure. However, the appellant did concede that “if the staple line has been positioned so low that it crosses or is below the dentate line, then that would be sufficient to support an inference of negligence”.
The appellant denied negligence and also denied that the procedure has caused the respondent’s ongoing difficulties. There was no real dispute concerning the respondent’s ongoing physical and psychological condition, but the appellant denied that it has been caused by the surgery, irrespective of any negligence in its performance.
The appellant’s argument was that the evidence did not support a causal link between any proved negligence in the performance of the procedure and the subsequent deterioration of the respondent’s health. It was contended by the appellant that the respondents ongoing difficulties since the original surgery were explained by the natural progression of her pre-existing conditions, and further or in the alternative, were consistent with the expected consequences of a competently performed stapled haemorrhoidectomy.
Key Grounds of Appeal and Judicial Errors in Patiniotis v Garling
The appellant asserts error on the part of the learned trial judge in 3 paragraphs from his reasons.
The first is paragraph [46], where his Honour said:
Mr Read also put to Dr Sitzler the opinion of the joint experts that the true location of the staple line ‘would best be determined by a combined digital rectal and proctoscopic examination’. The witness agreed but also expressed the view that the sigmoidoscope used by him was as good as a proctoscope for this purpose. As I have noted, neither party has presented any evidence of the type of examination referred to by the joint experts. However, the plaintiff would argue that Dr Sitzler’s combined perianal rectal examination together with further examination with the use of the sigmoidoscope is equivalent to it. This seems to be the effect of Dr Sitzler’s evidence. This opinion was challenged but not undermined by cross-examination. It was not the subject of contrary evidence. I accept Dr Sitzler’s opinion about this question.
It is said of that paragraph that his Honour erred in finding that Dr Sitzler’s opinion was not the subject of contrary evidence.
The second is paragraph [81] where his Honour said:
Having regard to all of the evidence, I am satisfied on the balance of the probabilities that the defendant inserted the staples in a position which was across or below the anatomical position of the dentate line. In particular, I accept the accuracy of Dr Sitzler’s observation, that is that the staple line has been placed over and therefore has obliterated the dentate line. It may well be that this occurred when the mucosa was drawn up by the purse string suture into the stapler head, and that this included the dentate line. This may explain why the staples appear to be higher in the anal canal than the normal anatomical position of the dentate line. In any event, Dr Sitzler’s evidence was unequivocal and he was well-placed to make the observation, both in terms of his experience and the thoroughness of the examination. I note again that he conducted both a rectal examination and an internal examination with a sigmoidoscope, an instrument which he equated as equivalent to the proctoscope recommended by the joint experts, in respect of its capacity to permit a view of the relevant internal structures.
It is said of that paragraph that in accepting the accuracy of Dr Sitzler’s observations that on the balance of probabilities the appellant inserted the staples in a position which was across or below the anatomical position of the dentate line, his Honour engaged in “impermissible speculation” having regard to the absence of an internal examination of the respondent by Dr Sitzler with a proctoscope.
The third, concerning causation, is paragraph [72], at which the learned trial judge said:
Associate Professor Boesel qualified his opinion on the basis that he is ‘not a trained colorectal surgeon’. He concedes that this makes it difficult for him to comment on the relationship between a sub optimally placed suture line, and presumably, the relevant nerve damage. At trial, defence counsel objected to his evidence concerning the causal link between the stapled haemorrhoidectomy and the nerve damage on the basis of a lack of relevant expertise. I permitted the evidence but observed that matters such as the absence of internal examination and a lack of expertise in respect of the relevant procedure, would affect the weight to be placed on this opinion.
It is said of that paragraph that in permitting the evidence of Dr Boesel concerning the causal link between the stapled haemorrhoidectomy and the nerve damage, his Honour engaged in impermissible speculation having regard to the absence of an internal examination and a lack of expertise in respect of the relevant procedure.
In its consideration of ground 1, the Court provided as follows:
The learned trial judge considered and analysed the whole of the evidence related to this issue and was alive to all of the considerations raised by the appellant [at 25].
The learned trail judge was entitled to prefer the evidence of Dr Sitzler’s opinion which was decisive of this issue [at 31].
I would dismiss ground 1 of the notice of appeal [at 32].
In its consideration of ground 2, the Court provided as follows:
I agree that the trial judge correctly weighed Dr Sitzler’s evidence against the other evidence before he determined the ultimate factual issue, namely the location of the staple line, (at pars [81-82] of his Honour’s reasons), and that there was no error in his Honour’s analysis. Dr Sitzler gave unequivocal evidence regarding the non-existence of the dentate line, which itself was, in the circumstances of this surgical procedure, proof of negligence. As observed by his Honour, Dr Sitzler’s opinion was challenged but not undermined by cross-examination and his actual recorded observations were not the subject of contrary evidence [at 59].
I also agree with the respondent that there was circumstantial evidence that was consistent with Dr Sitzler’s direct evidence, namely, the alteration in the respondent’s pattern of defecation and the development of perianal pain, of which the respondent had not complained prior to her surgery, and the learned trial judge was entitled to accept the evidence of Professor Boessel, regarding the relationship between nerve damage in the respondent’s anal canal and the “pace of development and the experience of that symptomatology by the patient” [at 60].
On my own review of the evidence, I also accept that the report of Dr Mignanelli dated 6 November 2014, in which he stated “digital rectal examination showed a very low staple line, probably just at or slightly below the anorectal ring” was inconclusive and that the radiological opinion of Dr Jones that the staples were placed at least 7mm above the dentate line, was of little weight when he acknowledged in cross-examination that a CT scan did not enable him to view the dentate line, and he was thus unable to exclude Dr Sitzler’s evidence, that the dentate line had likely been pulled into the stapler and excised during the surgery. In any event, the CT images Dr Jones reviewed were post-surgery, in circumstances where, according to Dr Sitzler, there had been alterations to the anatomy of the anal canal [at 61].
Finally, I reject the submission made by the appellant at paragraph 9 of his written submissions set out above, namely that Professor Eyers’ evidence, as set out in his report of 19 April 2018, was that he did not believe that the staple line was below the dentate line, when it is made without acknowledging that in his subsequent report, Professor Eyers stated that he found on examination of CT scan images, that some of the staples were at least three centimetres below the anorectal ring [at 62].
The learned trial judge was entitled to accept Dr Sitzler’s evidence and to draw supporting inferences from other evidence, including the development of post operative symptoms by the respondent. His Honour, at pars [81]-[82] weighed all of the potentially contradictory evidence but was not satisfied that it displaced the accuracy of Dr Sitzler’s observations. He was entitled to conclude, as he did, that Dr Sitzler’s evidence was unequivocal, and that he was well-placed to make the observations he did, both in terms of his experience and the thoroughness of his examination [at 63].
I would dismiss ground 2 of the notice of appeal [at 66].
In its consideration of ground 3, the Court provided as follows:
In my view the learned trial judge did not err in admitting the evidence of Associate Professor Boesel on the basis and for the purposes which he did. Even if he was not, he would have been entitled to take that evidence, minus the opinion as to the causal link, and arrive at the same conclusion himself based on the whole of the evidence as to the onset of symptoms and the lack of any other identified cause for the respondent’s pain [at 92].
His Honour employed orthodox reasoning in a case which merely required satisfaction on the balance of probabilities. If his Honour had not accepted the respondent’s evidence to the extent required for satisfaction as to the truth of the history given to Associate Professor Boesel, then his Honour would not have been able to infer the requisite causal relationship between the breach and the harm (or, assuming he correctly admitted that the expert opinion evidence of the associate professor, to have accepted that opinion) [at 94].
I would dismiss ground 3 of the notice of appeal [at 98].
Ultimately, on 12 June 2025, the Supreme Court of Tasmania ordered that the appeal and the cross-appeal be dismissed.
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