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Court in the Act
15 January, 2010  
Defamatorium

December saw some high profile defamation cases going the way of media defendants … There was a verdict for The Sydney Morning Herald in the Roco Roco restaurant review case … The same day The Australian won the war crimes case brought by Serbian paramilitary commander Captain Dragan … However, there was one case that month in which the media’s truth defence failed in the face of compelling cross-examination … Transcript

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Dr Peter Haertsch sued Channel Nine over a report on A Current Affair in August 2008, which accused him of imagebotching breast implant surgery on a former Gold Coast meter maid, Andrea Chia (seen here).

He said the program portrayed him as “disgraced”, incompetent, unfit to be a surgeon and guilty of serious misconduct.

On December 2, a jury found all the imputations conveyed and none of them true. Justice Henric Nicolas is considering the damages.

After Chia’s implants began to come apart other doctors noted an “oozy discharge” and prescribed antibiotics.

Later Haertsch performed a second operation in which he removed the implants, sterilised then and reinserted them.

Eight months after that, in September 2006, Chia complained that her breasts were markedly different in size. Haertsch noted a build-up of fluid in her right breast but insisted there was no evidence of infection.

Dr Haertsch said he treated Chia’s wounds as “contaminated” rather than “infected”.

The same day in September that Haertsch saw Chia in his rooms he also gave an interview to Four Corners where he was shown talking about the risks of breast implant surgery to a prospective patient, Leanne Heazlett.

During two days of evidence Haertsch denied that Chia had an infection as a result of the surgery.

Despite the defendant’s loss, there was some masterful cross-examination of the plaintiff by Nine’s barrister Bruce McClintock:

McClintock: Now, about the [Four Corners] interview. You now recall the patient, Leanne Heazlitt; don’t imageyou?

Haertsch (pic): Yes …

Q: Doctor, you see at the bottom of what is page 4, you are giving one aspect of the warnings that you give to patients; you see that, don’t you? Go to the bottom of page 4 …

Q: You would agree with me, wouldn’t you, that that warning is a critically important part of the obtaining the patient’s informed consent to the surgery; that is correct, isn’t it?

A: Yes.

Q: Immediately before, or very shortly before you saw this patient, Leanne Heazlitt, you had seen Andrea Chia; hadn’t you?

A: Yes.

Q: Let’s go straight through it. At the bottom of page 4 you say, “If I have got to do it you’ll understand why. It’s because, you know, if I don’t do that , you’ll start to get into trouble”. You turn to infection, “Infection is a risk, a low risk”. Just read that to yourself down to the end of that page; you see that?

A: Yes.

Q: You draw, in the third last line, a distinction between an infection in the wound or in the breast pocket; don’t you?

A: Yes.

Q: Then you say that you have never had any real trouble with wound infections?

A: Yes.

Q: Over the page, the patient says, “Okay”. Then you say, “An infection in the breast pocket is potentially a very serious one”?

A: Yes.

Q: “In that you would lose the implant”?

A: Yes.

Q: You say that is the worst case scenario. Then you say this and you saw yourself saying this on the video I have just played; didn’t you?

A: Yes.

Q: “However, I can tell you that I have two, two breast pocket infections and we’ve taken a gamble and washed them out, added lots of antibiotics and left the implants in and, touch wood, they’re still there, no problem”. Do you see that?

A: I see that.

Q: You heard yourself saying that on the video; didn’t you?

A: Yes, I did.

Q: That was a reference, wasn’t it, to Andrea Chia, the patient you had seen shortly beforehand?

A: There I – no, it was not.

Q: Doctor …

A: I apologise, yes, I have lost implants in Andrea Chia, yes.

Q: You were talking, when you were giving the warning to Leanne Heazlitt, about Andrea Chia and what had happened with her; weren’t you?

A: I was alluding to Andrea Chia.

Q: Yes, you said, doctor, to Leanne Heazlitt, as part of a critical warning you were giving, that you had a patient, Andrea Chia – you didn’t use the name, but it was Andrea Chia – who had two breast pocket infections; didn’t you?

A: I had no evidence to say that, but I said it.

Q: I see. There is nothing equivocal about what you say. You say, “However, I can tell you that I have had two, two breast pocket infections”; you said that, didn’t you?

A: I said it, without evidence.

Q: I see, but, at the time you said it, you had in mind the fact that Andrea Chia had an infection and that is what you are conveying to this patient, Leanne Heazlitt; that’s right, isn’t it?

A: No, it is not.

Q: I see. You said – well, perhaps, you could tell us what you meant when you said to Leanne Heazlitt, “I can tell you that I have had two, two breast pocket infections” – I withdraw that.

Just pausing there, you were, of course, referring to the infections in each of Andrea Chia’s breasts; weren’t you?

A: I had no evidence to say that about Andrea Chia.

Q: Doctor, I am asking you about what you said on this occasion. You were referring, when you used the words, “two breast pocket infections”, to infections in each of Andrea Chia’s breasts; weren’t you?

A: Yes.

Q: Yes. Then you said, “We have taken a gamble”; didn’t you?

A: Yes.

Q: The evidence you gave to the jury that you have never used those words in the critical context as you said this morning was untrue, wasn’t it?

A: In retrospect, yes.

Q: Doctor, you knew it was untrue when you said it; didn’t you?

A: No, I didn’t.

Q: I see?

A: I don’t recall things like that.

Q: Then you describe, don’t you, what you did with Andrea Chia; you washed them out and so on?

A: Yes.

Q: Again, referring to your treatment of Andrea Chia?

A: Yes.

Q: Then you said, “and touch wood”; didn’t you?

A: Yes.

Q: “Touch wood”, of course, you meant to indicate, it is a request for luck, isn’t it? What did you mean by, “touch wood”?

A: Well, luckily, they are still there.

Q: You had just seen them there, hadn’t you, one bigger than the other; hadn’t you?

A: They were still there.

Q: Doctor, the only meaning that can rationally be given to this passage is that you were telling this patient that you had a patient who had two breast pocket infections; that’s right, isn’t it?

A: That is what I have said.

Q: If Andrea Chia had two breast pocket infections, as you said to Leanne Heazlitt, it would follow that every time you said to this jury over the last two and a half days that she didn’t have an infection, it would follow that that was untrue; wouldn’t it?

A: Andrea Chia never had any infection.

[snip]

Q: You said to Leanne Heazlitt that she did have an infection; didn’t you?

A: Well, yes, I have, inadvisedly.

Q: Doctor, the two statements are inconsistent; aren’t they?

A: They are inconsistent.

Q: Yes. When statements are inconsistent, doctor, it means that one of them is true and one of them is false; doesn’t it?

A: I don’t know about that.

Q: Doctor, either she had an infection, or she didn’t have an infection; either the statement that she did is true, or false; either the statement that she didn’t is true or false; that’s right, isn’t it?

A: Andrea Chia never had an infection.

Q: If follows, does it, doctor, that what you told Leanne Heazlitt was false?

A: Yes.

[snip]

Q: Right. Doctor, you didn’t mention the fact that you knew and knew no later than 23 July 2007 that Andrea Chia had made a complaint about the quality of your care to the Health Quality Complaints Commission; that is true, isn’t it?

A: My recollection is that Andrea Chia made a complaint about my, my interview with her on September 24.

Q: Doctor …

A: My treatment of her as a result, that is my recollection.

Q: Doctor, you said, as in the first question I asked you about at line 34, “You have told the jury you heard nothing further from Andrea or about Andrea after 24 September 2006”; that is what you said, isn’t it?

A: Yes.

Q: The only exception you gave was Dr Prochazka; wasn’t it?

A: Yes.

Q: The only sense that the jury could give to that was that there was nothing else, other than Dr Prochazka, in which Andrea Chia came to your mind in that time; that’s correct, isn’t it?

A: I wrote that on 23 July 2007, yes.

Q: In so far as you denied that you had any information about Andrea Chia to the jury, that was false; wasn’t it?

A: Information that I had about Andrea Chia relates to information I was told in July ‘07 and my recollections of my consultation in September ‘06.

Q: Doctor, the evidence you gave about hearing nothing about Andrea after 24 September 2006 was false; wasn’t it?

A: I have qualified it; that statement alone is false.

Q: Yes and you knew it was false; didn’t you?

A: No, I didn’t.

Q: You deliberately tried to keep from the jury the fact that you knew that Andrea Chia had made a serious complaint about your conduct to the Queensland Health Care Complaints Commission; didn’t you?

A: No, I didn’t. Andrea Chia …

Q: I’m sorry …

His Honour: Could you complete your answer.

Plaintiff: Andrea Chia made a complaint about a consultation, which took place on – it is any recollection that Andrea Chia made a complaint about a consultation which took place in September of ‘06 and my management of her from then on.

[snip]

Q: Let’s actually ask you what you think now. What do you think now about the fact that Andrea Chia had open surgical wounds unrepaired for over 2 weeks?

A: It is less than ideal.

Q: Disgraceful, isn’t it?

A: No.

Q: You know, don’t you, that Pamela Noon bandaged up Andrea Chia, don’t you?

A: Now I do.

Q: What do you think about that as an example of after care?

A: Can I just qualify that previous answer.

Q: Please?

A: I have no evidence which says Pamela – there is a file note but I have no evidence that Pamela acted in the way of a nurse.

Q: Let’s just assume make the hypothetical, that she did bandage them up, what would you say to that, about an example of after care?

A: Well, its inappropriate. She is not a nurse.

Q: If I told you that Andrea Chia came to Pamela Noon’s place of business on 10 or 11 January 2006 and said that she had smelly brown fluid squirting from her breasts, there is no doubt hypothetical and that Pamela Noon or one of her staff told her to go home? What would you say about that?

A: That is inappropriate.

Q: It is disgraceful, isn’t it?

A: It is inappropriate.

Q: And what if I told you and asked you to assume that a nurse had actually gone to Andrea Chia’s house and squeezed her breasts to express the pussy fluid that was contained inside them. What would you say about that? That is disgraceful, isn’t it.

A: Inappropriate.

Q: What would you say – I withdraw that. You know that someone, some so-called medical professional had attempted to close the wound with steri strips. You have seen that, haven’t you?

A: Yes, I have.

Q: It was a failure, wasn’t it, because the wounds were still open?

A: Yes.

Q: That was inappropriate treatment wasn’t it?

A: Inappropriate, yes.

Q: In fact I suggest to you it was quite – it was completely inchoate treatment?

A: It was unacceptable incompetent.

Q: This woman was your patient, wasn’t she doctor?

A: Yes.

Q: She was in the position she was because of and only because of the surgery you had performed on her, wasn’t she?

A: Yes.

Q: Ultimately doctor, you are responsible for the after care that each and everyone of your patients receives, aren’t you?

A: Yes.

Q: I am not suggesting now that you were directly responsible for this but you would accept indirectly responsible for the level of after care that this patient received, wouldn’t you?

A: Yes.

Q: There was in fact an appalling break down of the system that you supposedly had put in place, wasn’t there?

A: Yes.

Q: Exemplified by all the things I have put to you just now, that is correct, isn’t it?

A: Yes.

* * *

In another episode a woman [name suppressed] complained to the Queensland Medical Board nine months after Haertsch removed both her breasts.

imageShe said she should have been independently assessed by a psychologist and that the surgeon should have allowed her a two-week cooling-off period.

Haertsch agreed that he was wrong to have removed the woman’s breasts. A Queensland medical tribunal found him guilty of unsatisfactory professional conduct in March 2007 and he withdrew his Queensland registration.

Here’s portion of McClintock’s (pic) cross-examination on the amputation of the breasts of this healthy woman:

Q: You see, Dr Haertsch, Mr Littlemore asked you this, this was yesterday morning, “You told the jury that you had, however, referred some patients for such assessment”. Answer, “Patients such as Ann, yes. Question, “Patients such as this lady”. Answer, “This lady, yes. Question, “Why didn’t you do it on this occasion”. Answer, “The truth of the matter is that when I was first asked by, asked, strangely enough, the first, when I came across this problem it was a girl from the Navy and I had been sent to her”. I think that should read, she had been sent to you, “by a naval doctor saying, ‘Look, what do you think about this girl and removing her breasts’ and I said, ‘What is going on here’. So I sent her to a psychiatrist. I had about five or six after that, because people get on the internet and they all know who does what and where”.

That is the passage I wanted to take you to, doctor, but, in fairness, I should read you the rest of the answer, so you understand it. “I had about fix or six patients like this that I sent to psychiatrists. When I looked at psychiatrists’ reports, they all said the same thing; they were talking about not being delusional, not being body dysmorphic, which is where a patient feels that some part of them is diseased or is a problem and wanted it removed. She didn’t have a borderline personality disorder. She wasn’t a Munchausens. In other words, a patient who deceives people because she wants to have pain and suffering and wants to have an operation. I thought, if I am looking at these things, I can assess that myself”.

You see the answer you have given there?

A: Yes.

Q: Now, on that point, doctor, you said, “I had about five or six patients after that because people get on the internet and they all know who does what and where”. I am not criticising you, but I didn’t understand what you were saying there. What did you mean by that?

A: What I meant by that, I have not surfed the internet, but I do know that, on the internet, people chat and go on and they talk; people with similar problems chat and go on.

Q: Now, what did you think they were saying? What did you understand that they were saying about you on the net?

A: They were probably saying that I do this type of surgery.

Q: What type of surgery, doctor?

A: Amputation of female breasts.

Q: Yes and what you understood them to be saying was that you did it without psychiatric referral; that is what you were saying, isn’t it?

A: I would, yes. I would do the assessment myself.

Q: I see. How many patients, women female patients’ breasts did you cut off without getting a psychiatric assessment, or was the Ann the first?

A: I can’t recall, but it would certainly – two or three.

Q: Just let’s think about what Ann told you again yesterday, doctor. You can recall this, can’t you? If you need to be taken to your notes, I will give them to you. She did not give you a single rational reason for the surgery she wanted; did she?

A: I didn’t – I found her to be perfectly rational.

Q: The only reason she gave for the surgery was that she found her breasts unacceptable?

A: She wanted to be flat-chested as well and she didn’t want to have children.

Q: She didn’t want nipples; that is right, isn’t it?

A: That’s correct.

Q: That, you would agree with me, won’t you, is a classic example – I put this to you yesterday – of body dysmorphia?

A: Totally untrue …

Q: It certainly shows, doesn’t it, doctor, a woman who has an abhorrence of her female form including her breasts doesn’t it.

A: No it doesn’t.

Q: It done show abhorrence of her female form?

A: No, it – abhorrence of her breasts.

Q: Breasts are an essential part of a woman’s female form; aren’t they?

Littlemore: By what standard? I object to that question; it is quite meaningless.

His Honour: Put another question.

McClintock

Q: Breasts are an essential part of an adult woman’s female form; woman have them, men don’t?

A: Men do have breasts …

His Honour: Why don’t we get to another question.

McClintock

Q: Now, you don’t agree that Ann was showing an abhorrence of her female form?

A: She told me that she – can I have a look at my notes, please?

Q: By all means; it is exhibit 2.

Littlemore: We make the point that this has been examined at some point already.

His Honour: Mr McClintock, I would simply ask you to keep that in mind.

McClintock: Certainly.

His Honour: One wants to avoid trampling over old ground …

McClintock

Q: You wanted to see exhibit 2; has that cured whatever problem you had, doctor?

A: Repeat that question, please.

Q: You wanted to see exhibit 2?

A: Yes, I wanted to see my contemporaneous notes.

Q: Yes and you see that her complaint was she didn’t plan to have children and she found the breasts unacceptable?

A: “Unacceptable”, that is the word I was after.

Q: The word “unacceptable”, you don’t say indicates abhorrence of the female form?

A: No.

Q: In so far as …

A: No.

Q: Just have a look at this document, if you would, doctor (witness shown document). You see what that is, don’t you, doctor?

A: Do I see what the headline is?

Q: Well, you would agree with me, wouldn’t you, looking at this, you gave an interview to a journalist from The Australian newspaper, on or shortly before 4 August 2008 last year, about the Ann issue; didn’t you?

A: Yes.

Q: I’m sorry, I apologise, I was mislead by the form of the document. Just drop down, you will see the date there, I assume that was when it was printed off The Australian’s website. You see that the headline is …

His Honour: What is the date?

McClintock: December 23, 2006.

Q: Shortly before December 23, 2006, you gave an interview to Michael McKenna of The Australian newspaper?

A: Yes.

Q: Now, if you go down to about the sixth, seventh paragraph, you will see a lengthy quote from you?

A: Yes.

Q: And you see it says, ” ‘She was perfectly intelligent and lucid and clearly wanted to be flat-chested. She even wanted her nipples removed, which I refused’, Dr Haertsch told the Weekend Australian. He said he provided a life saving, although unusual service.” Pausing there, you have read that paragraph; haven’t you?

A: Yes.

Q: It accurately quotes what you said, isn’t it?

Littlemore: You mean, “doesn’t it”.

McClintock

Q: It accurately quotes what you said to this journalist; doesn’t it?

A: I am not – I can’t attest to that.

Q: It goes on to say, ” ‘There is a subset of her abhorrence of the female form. Just as there are males and females who after psychiatric counselling I have neutered’, he said, ‘If I didn’t they would mutilate themselves or even commit suicide’.”?

A: That’s correct.

Q: Doctor, you are clearly grouping the patient, Ann, in the subset who are in abhorrence of their female form in that quote; aren’t you?

A: I am not entirely sure about that.

Q: It certainly looks like it?

A: I can’t recall the interview.

Q: I see. You don’t dispute though, do you, you don’t say that the journalist has quoted you inaccurately; do you?

A: I am not saying that, no.

 
 

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