FEDERAL COURT OF AUSTRALIA

Al Muderis v Nine Network Australia Pty Limited (Trial Judgment) [2025] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

PART 1 — INTRODUCTION

Section 1 — Introductory remarks

1 The applicant, Dr Munjed Al Muderis, an orthopaedic surgeon, is suing Nine Network Australia Pty Limited (Nine Network), Fairfax Media Publications Pty Limited (Fairfax), The Age Company Pty Limited (The Age Company) and journalists, Ms Charlotte Grieve, Mr Tom Steinfort and Ms Natalie Clancy (together, the respondents), for defamation in relation to television, video and newspaper (print and online) publications published in September 2022.

2 It is not disputed that at the time of publication, Dr Al Muderis had a high profile. He had featured on the television programs 60 Minutes (a separate episode to that the subject of these proceedings), Foreign Correspondent, Inside Story and Anh’s Brush with Fame. On his own account he was one of the busiest orthopaedic surgeons in Sydney. He held several clinical, consultant, academic and other professional appointments. He is a prolific author, accomplished public speaker (including at significant forums), the recipient of many awards for his medical and humanitarian achievements and was the 2020 NSW Australian of the Year. His fame was also because of his backstory; from escaping Iraq as a refugee, to holding the various positions and obtaining the achievements described (expanded upon below). The respondents described his reputation as “glittering”.

3 The matters published stemmed from a joint investigation conducted from May 2022 until the date of publication, between 60 Minutes, The Age and the Sydney Morning Herald, into information that had been obtained that portrayed a different picture of Dr Al Muderis. Although the respondents accepted Dr Al Muderis is, to many, an Australian hero who has devoted much of his life’s work to helping amputees walk again, they contended their investigation revealed that there was a significant cohort of unhappy patients. The journalists gave evidence that they found that some of the patients’ experiences with Dr Al Muderis were inconsistent with that portrayed in the media, including experiences where patients were vulnerable and susceptible to pressure tactics, where some patients had not had the risks of the surgery properly explained to them and where some patients said they had not received proper aftercare. After the investigation, a decision was made to publish the impugned matters. The journalists’ evidence is that they believed it was in the public interest to do so. The matters covered topics including allegations that Dr Al Muderis engaged in improper sales tactics, misled patients and downplayed the risks of osseointegration surgery, did not provide proper aftercare, and prioritised money over patient care.

4 There are seven matters sued on:

(1)    a promotion for the then upcoming episode of 60 Minutes entitled “Sneak Peek: Cut to the Point”, published on 8 September 2022, and on the 60 Minutes Australia YouTube page from about 14 September 2022 (Sneak Peek) (see transcript at Annexure A);

(2)    an episode of 60 Minutes entitled “Cut to the Point”, broadcasted on 18 September 2022 (Broadcast) (see transcript at Annexure B);

(3)    a print article in the Sydney Morning Herald newspaper entitled “Surgeon ‘botched amputee aftercare’”, published on 19 September 2022 (SMH Article) (see Annexure C);

(4)    an article on the Sydney Morning Herald’s website entitled “Oozing and maggots: The stories one of Australia’s most celebrated surgeons doesn’t want you to hear”, published on 18 September 2022 (SMH Online Article) (see Annexure D);

(5)    a print article in The Age newspaper entitled “Celebrity Surgeon ‘left patients in pain, to rot’”, published on 19 September 2022 (Age Article) (see Annexure E);

(6)    an article on The Age’s website entitled “Oozing and maggots: The stories one of Australia’s most celebrated surgeons doesn’t want you to hear”, published on 18 September 2022 (Age Online Article) (see Annexure F); and

(7)    a video on The Age’s website entitled “Oozing and maggots: The stories one of Australia’s most celebrated surgeons doesn’t want you to hear”, published on 18 September 2022 (Grieve Video) (see transcript at Annexure G),

(the Publications).

5 The applicant alleges those matters convey 75 defamatory imputations (see a list of the pleaded imputations at Annexure H), some of which are admitted by the respondents to be conveyed to the ordinary reasonable reader or viewer (others are disputed). The respondents rely on the defences of justification (substantial truth) to most of the imputations, contextual truth, public interest and honest opinion, relying on ss 25, 26, 29A and 31 of the Defamation Act 2005 (NSW), respectively.

6 The issues which arise for the Court’s consideration are:

(1)    whether the defamatory imputations pleaded at [13.24] and [16.1] (in the SMH Article, the SMH Online Article, and the Age Online Article) of the Statement of Claim (SOC) (together, the Denied Imputations) were conveyed;

(2)    whether the defamatory imputations pleaded at [10.1], [10.2], [10.3], [10.4], [10.5], [10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30] of the SOC (the Disputed Imputations), are confined to the applicant’s performance ‘in the operating theatre’, and if so, whether they were conveyed;

(3)    whether the pleaded defamatory imputations in the SOC which are conveyed (save for [13.24], [16.9], [16.28] and [28.6]) are substantially true: defence of justification, s 25 of the Defamation Act. The respondents in oral closing submissions characterised their case as one of contextual truth, not a justification case;

(4)    whether some or all the imputations on which the respondents rely as contextual imputations are substantially true and whether, in light of their substantial truth, any residual defamatory imputations do not further harm Dr Al Muderis’ reputation: defence of contextual truth, s 26 of the Defamation Act;

(5)    whether the respondents reasonably believed that the Publications were in the public interest: defence of public interest, s 29A of the Defamation Act;

(6)    whether the Publications were expressions of opinion on matters of public interest based on proper material: defence of honest opinion, s 31 of the Defamation Act; and

(7)    various findings of fact which Dr Al Muderis invites the Court to make in relation to his alleged entitlement to damages and aggravated damages.

7 It is appropriate to observe at the outset that this is not a medical negligence case. The relevant issues are determined based on the principles applicable in defamation proceedings.

8 For the reasons below:

(1)    Imputations [13.24] and [16.1] (in respect of the SMH Article, the SMH Online Article and the Age Online Article), are not conveyed by the Publications. The Disputed Imputations, being [10.1]-[10.6] (Sneak Peek), [13.2], [13.6], [13.20] (Broadcast), [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30] (Articles) are not conveyed. The remaining imputations are conveyed;

(2)    it follows that in relation to the Sneak Peek, it has not been established that any of the pleaded imputations have been conveyed. The Broadcast, Articles, and the Grieve Video each conveys defamatory imputations;

(3)    the respondents have established the defence of contextual truth under s 26 of the Defamation Act in relation to the Publications in which imputations are conveyed;

(4)    the respondents have established the defence of public interest under s 29A of the Defamation Act in relation to the Publications in which imputations are conveyed; and

(5)    given the above, it is unnecessary to determine the respondents’ claim to the defence of honest opinion.

9 Accordingly, the application is dismissed.

Section 2 — Overview

Dr Munjed Al Muderis

10 Dr Al Muderis was born in Baghdad, Iraq in 1972. He completed his medical studies at the University of Baghdad, graduated in 1996 with the degrees of Bachelor of Medicine and Bachelor of Surgery and was licensed to practice medicine in Iraq shortly afterwards. He came to Australia by boat in November 1999 and was detained at Curtin Detention Centre in Western Australia, where he spent nearly a year before his asylum claim was accepted. He was granted an Australian visa in 2000.

11 From shortly thereafter he has held positions in various hospitals. In 2002, Dr Al Muderis passed the Australian Medical Council’s examinations to earn recognition in Australia of his Iraqi medical qualifications. In 2008, he passed the examinations which qualified him as an orthopaedic surgeon.

12 Dr Al Muderis is a Fellow of the Royal Australian College of Surgeons and the Australian Orthopaedic Association, a Clinical Professor at the Macquarie University Faculty of Medicine and Health Sciences, and an Adjunct Clinical Professor at the University of Notre Dame Australia School of Medicine. He is also an Honorary Associate in the School of Aerospace, Mechanical and Mechatronic Engineering in the Faculty of Engineering and IT at the University of Sydney.

13 He has held consultant positions as an orthopaedic visiting medical officer at Norwest Private Hospital since 2010, Macquarie University Hospital since 2010, Hurstville Private Hospital since 2016 and East Sydney Private Hospital since 2020. He has also held and currently holds numerous leadership and executive positions, including: Member of the MQ Health Clinical Leadership Council since 2019; Member of the Medical Advisory Committee at Macquarie University Hospital since 2021; Member of the MQ Health Clinical Executive Committee since 2021; Head of the Lower Limb Orthopaedics and Sports Medicine Discipline at MQ Health since 2022; and Member of the SydOrth Board Committee since 2022.

14 He has been involved in clinical education and supervision, including as the Chief Supervisor for three fellowship training programs accredited by the Australian Orthopaedic Association, and as Director of Registrar Training at MQ Health since 2019. He is an ambassador for a number of charitable and humanitarian organisations including the Red Cross and Amnesty International Australia; is or has been a patron of a number of other organisations including the Multicultural Disability Advocacy Association of NSW, Asylum Seekers Centre and Amputees NSW; is represented by Saxton Speakers and has been regularly engaged to speak on topics including human rights issues and charitable causes.

15 He has published extensively in the field of orthopaedics generally, and osseointegration in particular, by co-authoring 40 original publications in international peer-reviewed journals (including four on the topic of osseointegration in 2022) and authoring or co-authoring ten textbook chapters on orthopaedics (including seven on the topic of osseointegration in 2022). Dr Al Muderis has also presented academic papers at many medical conferences, in Australia and overseas and has been awarded research grants with a cumulative value of over $7,000,000 over the last decade.

16 In 2022, Dr Al Muderis was awarded the degree of Doctor of Medical Science by the School of Medicine at the University of Notre Dame for his thesis “Osseointegration for Amputees: Past, Present and Future: Basic Science, Innovations in Surgical Technique, Implant Design and Rehabilitation Strategies”.

17 Dr Al Muderis is the inventor of several patents for prosthetic devices, which are held either by him personally or through his company, Osseointegration International Pty Ltd (Osseointegration International). These include patents for an osseointegratable device and other orthopaedic and deformity correction devices. He has also contributed to the design and development of other systems, including an osseointegrated prosthetic limb system.

18 He has been involved in charity and humanitarian work, providing consultations and medical procedures to amputees and other patients (including orthopaedic and osseointegration procedures) in countries including India, Poland, Cambodia, Lebanon, the Palestinian territories in Ramallah and the West Bank, Iraq, Israel and Ukraine.

19 He has been the recipient of numerous awards including the Asia Game Changers Award for humanitarian work in 2018, the GQ Man of the Year Social Force Award in Abu Dhabi for surgical and humanitarian work in 2019 and NSW Australian of the Year for surgical innovations and humanitarian works in 2020.

20 Dr Al Muderis estimated he has performed more than 9,000 orthopaedic procedures since 2012, and over 800 osseointegration procedures.

21 Generally, Dr Al Muderis conducts his consultations at the Limb Reconstruction Centre (LRC) in Macquarie University Hospital (which was formerly at Norwest Private Hospital). He is the Chairperson and Founder of the Osseointegration Group of Australia. His company, Osseointegration International, was incorporated on 20 February 2015.

Osseointegration

22 The Publications featured the experiences of ten of Dr Al Muderis’ osseointegration patients. It is helpful at this stage to briefly address the nature of this surgery.

23 Traditionally, amputees used socket-mounted prostheses to mobilise and regain use of their affected amputated limb. The socket attaches to the amputation stump via suction, meaning that such prostheses do not require invasive surgical procedures. When used for the lower limb, an artificial knee joint and lower leg prosthesis attach to the socket.

24 Osseointegration, is a term that describes the in-growth and integration of living bone onto the surface of an artificial implant, without an intermediate layer of soft tissue. In the 1960s, the concept of osseointegrated reconstruction originated in the dental implant field. In the 1990s, Dr Rickard Brånemark pioneered the use of a screw-fixation implant under the name OPRA (Osseointegrated Prosthesis for the Rehabilitation of Amputees), following which, transdermal osseointegrated implants for attachment of prosthetic limbs were first used. As a procedure, extremity osseointegration is a relatively new major elective and invasive orthopaedic surgery which allows for direct attachment of an external prosthesis to the skeleton through the surgical implantation of an intramedullary device (a device inserted into the medullary cavity of the femur or tibia, i.e. into the central cavity of the bone). The three basic elements of osseointegration are: the residual bone, the metal implant and the transdermal surface. The metal device is implanted into the end of the residual bone of the amputated limb, then exits the soft tissue and skin through a surgically created transdermal opening in the body, known as a stoma, to attach and interface with an external prosthesis. Osseointegrated devices are typically made of titanium, which is a particularly biocompatible material. Bone grows onto and integrates with the surface of the implant, and osseointegration occurs. Over time, this creates a stable and solid connection between implant and bone.

25 Until about 2014, most osseointegration procedures worldwide were performed in two stages: the first stage to insert the intramedullary implant; and the second stage, to create the stoma, allowing for transcutaneous abutment attachment and prosthesis fitting. There were two main approaches for osseointegration procedures: the OPRA system and EndoExo system. Osseointegration using the OPRA system screws the implant into the bone in the first stage with a six to nine-month interval between stages. Implantation of the OPRA system occurs in two stages because the implant is not initially stable and time needs to be given to allow strong osseointegration to occur before load is placed on the implant, otherwise it may fail. By contrast, the EndoExo system inserts a press-fit implant made of cobalt chrome alloy, driven into the medullary cavity with a mallet (instead of being screwed in, per the OPRA system) and requires a four to eight-week interval between stages. A more recent version of the implant is called the Integral Leg Prosthesis (ILP).

26 Dr Al Muderis’ evidence was that he began his practice using the two-stage EndoExo system. In 2013, he designed modifications to the system in collaboration with Permedica S.p.A in Milan and renamed it to Osseointegrated Prosthetic Limb (OPL) system. The OPL system retains the EndoExo press-fit concept, and according to Dr Al Muderis’ description, has several advantageous features.

27 The image below depicts the main components of the OPL system used by Dr Al Muderis.

28 The dual cone adaptor connects the intramedullary implant to the external prosthesis and is secured by the internal locking screw. Dr Al Muderis’ evidence is that the dual cone adaptor has a highly polished surface to minimise soft tissue friction, and is coated with Titanium Niobium, which has antibacterial properties. The OPL system includes a “fail-safe” connector, which includes a taper sleeve component that connects on the distal end of the dual cone. The bushing component has two fail-safe pins that slot into matching holes on the taper sleeve. These pins are designed to break away if they are exposed to excessive rotational force, such as in the event of a fall, so that the excessive load can pass through and avoid damage to the implant or patient. The distal locking screw secures both the bushing and the taper sleeve on the dual cone. These three components form an abutment that can be inserted into the connector, which enables the quick attachment of the external prosthetic limb into the osseointegrated implant via the operation of a grub screw. The connector is then distally attached onto compatible commercially available prosthetic limbs via an industry standard four-hole base profile.

29 Since about April 2014, Dr Al Muderis has been performing a single-stage surgery with the OPL system, a modified surgical technique under the Osseointegration Group of Australia Accelerated Protocol-2 and a structured post-operative loading protocol. According to Dr Al Muderis, single-stage implantation is possible with the OPL system because of its design: the fluted proximal section of the OPL implant is both axially and rotationally stable after implantation. Dr Al Muderis owns personally, or through his company (Osseointegration International), the patent for his osseointegration device used in the surgery. His company manufactures the implants.

30 Dr Al Muderis, and various of the expert witnesses gave evidence which addressed the advantages and disadvantages of the different systems for osseointegration surgery. However, it is important to remember that this is not a case about the merits of osseointegration. Nor is it about which is the better system.

The journalists

Ms Charlotte Grieve

31 Ms Grieve is an investigative journalist in The Age’s Investigations Team. In June 2022, she was appointed as a secondee in that team. It was in that context that she conducted the investigation into Dr Al Muderis’ practice. Ms Grieve’s affidavit details her experience including the work undertaken in the roles she has held, the stories she has been involved in, and awards and commendations she has received. She began working in the media in various positions while studying for her Masters of Journalism in 2016 to 2017. She explained she also acted as a freelance journalist during this period, with articles published in The Guardian, The Age, SBS and the Sydney Morning Herald. In October 2018, she commenced as a trainee journalist at The Age. From around December 2019, she worked as a business journalist with the newspaper. She was awarded the 2021 and 2022 Citi award for young business journalist of the year.

Mr Tom Steinfort

32 At the time of the Publications, Mr Steinfort was a journalist with 60 Minutes. He first joined the 60 Minutes team in 2018. Mr Steinfort has been a journalist for nearly 20 years. He has extensive experience in both news and investigative journalism, having worked for various programs, including Today, A Current Affair, Inside Story, 60 Minutes and Nine News. In February 2022, as a senior journalist, he assisted judging the 66th Walkley Awards for excellence in journalism. In August 2022, he won the Kennedy Award for Outstanding Foreign Correspondent for his reporting of the Ukrainian war and was also announced as a finalist in the Outstanding Finance Reporting category. In November 2022, he was part of a group nominated as finalists for the radio/audio feature of “Liar Liar: Melissa Caddick and the Missing Millions” as part of the 67th Walkley Awards for Excellence in Journalism.

Ms Natalie Clancy

33 Ms Clancy joined 60 Minutes in October 2019 as an Associate Producer. In January 2022, she became a Producer of the program. By September 2022, she had been a journalist and a producer in television news and current affairs programs for approximately six years. Ms Clancy detailed in her affidavit the significant stories and investigations in which she had been involved. She was a finalist in the 2018 Walkley awards and the 2018 Kennedy awards, for her reporting in relation to Dr Emil Gayed. In 2021, she won the Paul Lockyer Kennedy award for Outstanding Regional Broadcast Journalism with Gareth Harvey and Liz Hayes for her investigation into healthcare in regional and rural NSW.

Section 3 — The present proceedings

The parties sued

34 It is helpful to set out which respondents are sued in relation to each Publication:

(1)    Nine Network is sued in respect of the Sneak Peek and the Broadcast;

(2)    Fairfax is sued in respect of the SMH Article and the SMH Online Article;

(3)    The Age Company is sued in respect of the Age Article, the Age Online Article and the Grieve Video;

(4)    Ms Grieve is sued in respect of all the Publications except the Sneak Peek, that is, she is sued in respect of the Broadcast, the SMH Article, the SMH Online Article, the Age Article, the Age Online Article (together, the Articles) and the Grieve Video;

(5)    Mr Steinfort is sued in respect of the Broadcast and the Articles; and

(6)    Ms Clancy is sued in respect of the Broadcast and the Articles.

PART 2 — THE DEFAMATORY IMPUTATIONS

Section 1 — The pleaded imputations

35 As mentioned above, the applicant pleaded 75 defamatory imputations in his SOC. I do not propose to recite them here. Rather, they have been annexed to this judgment as Annexure H. There is an issue as to the meaning of certain imputations, and whether they are conveyed (with the conclusions below also being identified in Annexure I).

Section 2 — Legal principles

36 The principles in relation to meaning are well established, and not in dispute between the parties: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 219 CLR 165 at [6]-[12], [17]; Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (Trkulja) at [30]-[32]. For application, see, for example, Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush) at [70]-[85] (with there being no suggestion of any error in this collection of principles on appeal to the Full Court); Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432; Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33 (Hockey) at [63]-[73]; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 (Wing); V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 (V’landys) at [41]-[55]; Hanson v Burston [2023] FCAFC 124; (2023) 413 ALR 299 at [43]-[48]; Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 (Kazal) at [336]-[337].

37 An applicant bears the onus of establishing on the balance of probabilities that an ordinary reasonable reader, viewer or listener would understand that the publication sued upon bears the alleged defamatory meanings or imputations as pleaded and particularised.

38 The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. It is to be objectively determined. The hypothetical individual is a person with various characteristics, including: they are of fair to average intelligence, experience, and education; are fair-minded and neither perverse, morbid, suspicious of mind, nor “avid for scandal”; and that they do not examine the publication overzealously. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would: Rush at [75]-[77]; Kazal at [336]-[337]. The ordinary reasonable person is also taken to have read the entire publication, considered the context as a whole, and taken into account emphasis that may be given by conspicuous headlines or captions: see Rush at [77]; Trkulja at [32]; and the summary in V’landys at [41]-[55]. They are more likely to consider a publication cautiously and carefully, and less likely to jump to conclusions or engage in loose thinking, where the publications purport to be serious investigative journalism concerning matters of importance (a topic to which I return below). For transient publications such as television broadcasts (even where those publications are available to be viewed or re-viewed via the internet), ordinary viewers are likely to have watched the publication only once, without pausing or going back over it: Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; (2021) 386 ALR 36 (Chau) at [35]; V’landys at [73].

39 However, it does not follow that each part of the publication must be given equal significance, as striking words or images may stay with the reader, viewer or listener and give them a predisposition or impression that influences all that follows: V’landys at [51]. A pleaded imputation, and whether it has been proven to be substantially true, requires attention to context, as provided by the balance of the publication and any wider context within which it is to be understood. The natural and ordinary meaning of words is not limited to their literal meaning. The ordinary reasonable person is not a lawyer or be taken to have a detailed understanding of the law: Trkulja at [32]. The imputations are considered by reference to the ordinary meaning, not their legal meanings, because that is the way the terms would be understood by ordinary reasonable people. Words do not necessarily have a fixed meaning that applies in all circumstances; even benign words may convey a worse, or better, impression when regard is had to how and when they are deployed: see, for example, Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41; (2002) 54 NSWLR 165 at [21]-[27]; Lewis v Daily Telegraph Ltd [1964] AC 234 at 258. The meaning that an individual would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question: Rush at [80].

40 Given that the meaning is to be determined objectively, the audience is taken to have a uniform view of that meaning. The publisher’s intended meaning and that understood by individual readers of the matter complained of, are irrelevant: Rush at [84]-[85]. The determination of the natural and ordinary meaning of words involves the application of the “single meaning” rule. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171-175; Hockey at [73]; Wing at [32]. The issue is the single meaning that an objective audience composed of ordinary reasonable persons should have collectively understood the matter to bear: Wing at [32].

41 A matter is defamatory if it carries a meaning about the applicant which is calculated to: expose him or her to hatred, contempt, or ridicule; lower him or her in the estimation of ordinary right-thinking members of society; or cause others to shun and avoid him or her: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452-453; Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 638-639; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at [5].

Section 3 — Consideration

42 In this case, there are two imputations which the respondents deny are carried: Imputations [13.24] and [16.1] (in relation to the SMH Article, the SMH Online Article and the Age Online Article) (the Denied Imputations). There are a further 18 imputations where the meaning is disputed. If the applicant’s meaning is accepted, the imputations are denied. If the respondents’ meaning is accepted, they admit that meaning is carried, relating to Imputations: [10.1]-[10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30] (the Disputed Imputations). The remaining imputations are those which the respondents admit are carried, those being imputations [13.1], [13.3]-[13.5], [13.7]-[13.19], [13.21]-[13.23], [13.25]-[13.30], [16.1] (only in relation to the Age Article), [16.2], [16.3], [16.5]-[16.7], [16.9]-[16.12], [16.14], [16.16]-[16.19], [16.21], [16.22], [16.24]-[16.26], [16.28] and [28.1]-[28.9].

43 I accept the respondents’ submission that in assessing the meaning of these imputations that:

Ordinary reasonable viewers and readers of the Publications will have understood that 60 Minutes, the Sydney Morning Herald and The Age are reputable sources of serious news and current affairs. They will have known that these publishers employ reputable and experienced journalists who are not prone to exaggeration and sensationalism. They will have immediately understood that the Publications concerned serious matters of public importance in connection with the provision of medical care to vulnerable members of society. Such persons are not unusually suspicious or avid for scandal and do not search for sinister meanings. They will have approached serious, long-form journalism of this kind with caution and care, and been reluctant to leap to conclusions or engage in loose thinking.

44 That submission was not disputed.

45 In support of the submission, the respondents referred, inter alia, to the observations of Wigney J in V’landys at [72]-[73] (a passage upheld on appeal in V’landys v Australian Broadcasting Corporation [2023] FCAFC 80 at [75], [79] and [82]):

[72]    The first general observation is that the report was broadcast as part of an episode of one of the ABC’s flagship news and current affairs programs. That program, 7.30, is a half-hour long program which the ordinary reasonable viewer would understand generally includes well-researched reports by experienced journalists and social and political commentators concerning serious issues of public interest or concern. It should be noted, in this context, that, somewhat unusually for the 7.30 program, the report in question was almost 50 minutes long and occupied the entire episode of 7.30 on 17 October 2019.

[73]    Returning to the nature of the program generally, while views may of course differ, the ordinary reasonable viewer of 7.30 would most likely understand that the program was a respected current affairs program which was generally not prone to sensationalism, or loose or imprecise journalism or reporting. The ordinary reasonable viewer of 7.30 would be a person interested in watching a program containing serious and well researched reporting about important issues. Such a viewer would generally be more likely to view the program carefully and be less likely to engage in loose thinking and speculation than viewers of more sensationalist and less informative programs aimed more at entertainment than serious journalism.

46 The Full Court rejected the appellant’s ground that there was no basis for that observation: see [75]. At [81]-[84], Rares J (with whom Katzmann and O’Callaghan JJ agreed) concluded:

[81]    The ordinary reasonable reader, listener or viewer is a person whose understanding of what the matter complained of in a defamation action conveys necessarily must be representative of the class of ordinary reasonable members of the community who read, listened or viewed the publication. Different classes of readers, listeners or viewers will have different appreciations of what a publication is saying. Thus, the readers of a technical scientific journal that allegedly conveys a defamatory meaning, and those readers’ characteristics or approach, are not likely to be the same as those of ordinary reasonable persons who read a tabloid newspaper or a weekly gossip magazine.

…

[83]    Depending on the nature of the program that the viewer has selected to watch, his or her focus may be to learn from what is broadcast or to be informed, amused, distracted or entertained by it. It is a feature of everyday life that people change their approach to absorbing or comprehending communications that they read, hear or see depending on the context of the publication and the person’s purpose in reading, listening to or viewing it. …

[84]    But in every case where the question is whether a video or television publication conveys a defamatory imputation, the hypothetical viewer is an ordinary reasonable member of the type of audience who watches a program of the kind in issue in the way in which such a person ordinarily does. This required his Honour to take into account, in assessing how the viewer would understand the report and whether it conveyed the imputations, the degree to which such a program’s viewers had a proneness to loose thinking.

47 I accept the observations of Wigney J are apt to describe the Articles in The Age and the Sydney Morning Herald, as well as the Broadcast by 60 Minutes, which is a public affairs program. This was investigative, long-form journalism on a serious topic of the standard of medical care provided by Dr Al Muderis. The applicant admitted that the Publications were in the public interest. These were not entertainment stories but raised serious concerns and allegations about a serious subject matter of public interest: see Chau at [39].

The Denied Imputations

Imputation [13.24]: Dr Al Muderis improperly profits from his patients by charging them twice for the parts and procedure.

48 This imputation is said to arise from the following statement spoken by Mr Steinfort, in the Broadcast:

Dr Munjed Al Muderis’ business model is ingenious because not only does he carry out the surgery, but he also designs his own implants, so effectively he profits twice by charging for the parts and the procedure.

49 The applicant submitted that while Mr Steinfort did not expressly allege that this arrangement is “improper”, the notion of impropriety was conveyed by: the proximate context of the line to references in the Broadcast of Mr Bruha (one of his patients) saying he felt Dr Al Muderis was “a bit of a cowboy”; Mr Steinfort describing Mr Bruha as feeling like “just another number in a moneymaking machine” and stating that this feeling got worse with “another shocking development”, namely that when one of Mr Bruha’s parts broke, he was charged for the replacement; and Mr Bruha saying that this added “insult to injury”. The applicant also referred to the broader context of the Broadcast, which stated it is “all about the numbers” and referenced Dr Al Muderis going from “rags to riches”, with his expensive penthouse and car. He submitted that the Broadcast’s central theme was that the profits Dr Al Muderis supposedly makes from the components are exploitative, audacious and scandalous. It was submitted that when Mr Steinfort described Dr Al Muderis’ “business model” as “ingenious”, it was not a compliment, rather, the ordinary reasonable viewer would understand “ingenious” in this context to mean “devious” or “crafty”.

50 The respondents submitted that the imputation relates to a short part of the Broadcast lasting seconds and consisting of two sentences (which includes the next sentence being “[i]n fact, court documents from the US reveal that on average his business makes a profit of 110,000 Australian dollars for every American patient”). They submitted there is nothing in Mr Steinfort’s tone, nor the substance of his words, that would have conveyed to ordinary reasonable viewers that there was anything “improper” in the mere practice of Dr Al Muderis profiting from both the performance of osseointegration surgery and the supply of parts for that surgery. Their submission was that ordinary viewers, not avid for scandal, not searching for hidden or sinister meanings, and approaching the Broadcast cautiously with regard to the whole of its contents, will have understood that: (a) osseointegration surgery is “ground-breaking” and “cutting edge surgery”; (b) the surgery is radical, in that it involves implanting a metal rod into an amputee’s residual bone and connecting it to a robotic limb, making them “half-human, half-machine” in order to enable them to walk again; (c) surgery of this kind involves specialist skill and sophisticated hardware, both of which are expensive; (d) Dr Al Muderis is one of the leading exponents of the surgery in the world and has been feted for his performance of the surgery; (e) in the circumstances, Dr Al Muderis would be expected to profit handsomely; and (f) there is nothing inherently improper about that.

51 The respondents submitted the real sting of the Broadcast in so far as it concerns Dr Al Muderis’ business practices was not whether there is anything improper in Dr Al Muderis profiting from both his performance of surgery and his supply of parts but, rather, his practice of allegedly driving up patient numbers, prioritising the growth of his practice over patient care and treating patients like numbers (with the respondents pointing to other aspects of the Broadcast they submitted emphasised this). The respondents also referred to what Dr Anstee said in the Broadcast, where he expressed his opinion as to the propriety of Dr Al Muderis’ marketing practices but cast no judgment on the fact that Dr Al Muderis profits from both the parts and surgery, a matter the respondents argued would not have been lost on ordinary viewers.

52 I accept the respondents’ submission that the imputation as pleaded is not conveyed. An ordinary reasonable viewer would consider this statement in its broader context, considering the whole of the Broadcast. As the respondents submitted, the sting of the Broadcast in respect to Dr Al Muderis’ business practices relates to driving up patient numbers, treating patients as numbers, and prioritising growth of the business over patient care. At best, as the respondents submitted, it might support a finding that the Broadcast imputed that Dr Al Muderis engaged in commercially shrewd or opportunistic conduct in relation to the mechanisms by which he profits from osseointegration surgery. The statement conveys profiteering, but in context, not improperly so.

53 Imputation [13.24] is not carried.

Imputation [16.1]: Dr Al Muderis is a callous surgeon who routinely left patients in pain to rot after their surgeries

54 This imputation is disputed in so far as it is said to be carried by each of the SMH Article, the SMH Online Article, and the Age Online Article. The respondents no longer dispute the imputation is carried in relation to the Age Article.

55 The applicant submitted that it is conveyed explicitly by the front-page headline of the Age Article, “Celebrity surgeon ‘left patients in pain, to rot’”. He submitted that the ordinary reasonable reader would consider this to be callous behaviour by a surgeon towards his patients. The headline conveys that this is routine behaviour because it is expressed in absolute terms: Dr Al Muderis “left patients in pain, to rot”, not just “some patients”. The ordinary reasonable reader would understand that this occurred on more than a few occasions. It was submitted that with the exception of the Age Article headline, the text of the Articles is relevantly the same, and that the Articles presented numerous examples of patients who presented to Dr Al Muderis with complaints of pain or infection but were either ignored or brushed off (with the applicant providing examples thereof). The applicant submitted from the statements identified, that the ordinary reasonable reader would consider that what is described are the actions of a surgeon who is callous towards patients who are in pain and literally “rotting” because of infections. The applicant also submitted that the notion that Dr Al Muderis “routinely” ignores these patients arises in two ways: first, it is suggested that some of the patients profiled in the Articles raised concerns with him on multiple occasions and that he consistently ignored them; and, second, the notion that this kind of treatment is a routine occurrence across Dr Al Muderis’ practice as a whole is conveyed by the accumulation of examples.

56 The respondents accepted that the imputation is conveyed in the Age Article, but contended it is not conveyed in the SMH Article, the SMH Online Article and the Age Online Article. They submitted that each of those publications made no reference to Dr Al Muderis leaving patients to “rot after their surgeries”. The Articles did refer to some of Dr Al Muderis’ patients who had suffered ongoing and severe pain following osseointegration surgery but submitted that none suggested that Dr Al Muderis had left them to “rot” after surgery. They submitted that ordinary readers could only have arrived at such a meaning as a result of applying their own beliefs and prejudices in a search for a hidden or sinister meaning.

57 The SMH Article, the SMH Online Article and the Age Online Article do not contain a reference to “rot”. It is to be recalled that from the passages in the Articles relied on by the applicant in support of his submission, he contended that the ordinary reasonable reader would consider that the patients were “literally ‘rotting’ because of infections”. Considering those passages in the context of the whole of the Articles, I am not persuaded that is what is conveyed.

58 Imputation [16.1] is not carried in the SMH Article, the SMH Online Article and the Age Online Article.

The Disputed Imputations

59 It will be recalled that the Disputed Imputations are [10.1]-[10.6] (Sneak Peek), [13.2], [13.6], [13.20] (Broadcast), [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30] (Articles, noting [16.27], [16.29] and [16.30] are not pleaded in relation to the SMH Online Article and the Age Online Article (together, the Online Articles)). Each of these imputations incorporates words or phrases such as “operated”, “surgical abilities”, “conducted surgery” and “performed surgery”, or slight variations thereof.

60 There is an issue as to the meaning of those terms. As explained below, the applicant proceeded to conduct his case on the basis that those words or phrases mean what occurs in the operating theatre. That is, the conduct of the surgery itself, which they submitted must involve taking a scalpel to a patient. The respondents do not admit the imputations with that meaning. Rather, in their Amended Defence, their admission was only on the basis that ordinary reasonable viewers and readers would have understood them as impugning his surgical practice more generally, including “pre-operative and post-operative consultations, considerations and care” (being the broader meaning). The respondents submitted that the Disputed Imputations are not conveyed if understood in the narrower sense as advanced by the applicant, that is, only concerning Dr Al Muderis’ conduct of surgery in the operating theatre. The respondents submitted that if that is accepted, the applicant’s case in respect of those imputations must fail, because it has not been established that they are conveyed. They submitted that nonetheless, in that circumstance, they rely on the imputations with the broader meaning as contextual imputations. I note that the respondents also submitted that in any event, the evidence adduced at trial supports a finding that Imputations [10.1], [10.2], [10.4], [16.4] and [16.30] are true even in the narrower sense posited by the applicant.

61 In his written closing submissions, the applicant took issue with the respondents’ approach, contending that rather than addressing the issue of which imputations are carried by the matters, the contention about the meaning of “surgery” appears to be directed more to the extent to which certain particulars of justification, even if made good, are relevant to establishing the substantial truth of the imputations of which Dr Al Muderis complains. He submitted that the respondents seek to expand the meaning of “surgery” to broaden the matters which may be relevant to justifying those imputations. During oral submissions, the applicant contended it is for the Court to determine the meaning of “surgery” by reference to what the ordinary reasonable reader or viewer thinks it means. He submitted that as the respondents have admitted the broader interpretation is conveyed, the Court should conclude that meaning, as a minimum, applies and conclude, per the respondents’ case, that those imputations are carried.

62 I do not accept that that is the approach taken by the respondents. Rather, the respondents have addressed as the first step, the question of the meaning of the imputations, contending that the imputations are not conveyed if understood as the applicant contended. The respondents submitted that if that is correct, they are then able to otherwise rely on the Disputed Imputations with the broader meaning (as contextual imputations) for the purposes of their defence of contextual truth. The applicant repeatedly criticised the form of the respondents’ pleading but brought no application challenging its sufficiency or appropriateness, prior to the hearing.

63 An initial issue arises as to what the applicant pleaded in relation to the Disputed Imputations. In the applicant’s oral closing submissions (which I note for context were heard after his written closing submissions were filed), the applicant submitted that he was taken by surprise by the respondents’ approach to this issue, because at no point did he seek to define the meaning of “operation” or “surgical” or “surgery”, and it was not the applicant’s job to do so.

64 As the applicant submitted from the outset, it is his prerogative to choose the battleground by choosing the imputations on which he relies. That choice is a matter for the plaintiff: Wing at [16]-[17].

65 An imputation should identify the act or condition the plaintiff claims was attributed to him, as they would be understood by the ordinary reasonable reader, viewer or listener. The meaning would usually be distilled or inferred from the words used in the publication: Harvey v John Fairfax Pty Ltd [2005] NSWCA 255 at [118]-[132]; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (Drummoyne) at 137. If the publication gives rise to one or more possible meanings of a particular condition attributed to an applicant, the applicant is obliged to specify how and in what respects that condition is conveyed in the imputation: Trkulja v Google Inc LLC [2010] VSC 226 at [19]-[20], citing Gleeson CJ in Drummoyne.

66 As explained above, an applicant bears the onus of establishing that an ordinary reasonable reader, viewer or listener would understand the publication sued upon bears the alleged defamatory meanings or imputations as pleaded and particularised, which is seen to extend to any meanings that are not substantially different from or more serious than those pleaded meanings (often described as a mere shade or nuance of the pleaded meaning, or a permissible variant): Wing at [17]-[18]; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at [21]-[23], [60], [139]; Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 (Nassif) at [80].

67 The respondents submitted that at least from the case management hearing held on 24 August 2023, the meaning identified by the applicant and relied upon as conveyed is “surgery” and “operation” in the narrow sense, that is, confined to what occurred in the operating theatre. I accept that the position of the parties was apparent from at least that case management hearing (after the pleadings and evidence had been filed, but before the trial).

68 So much was made clear by the applicant in his written opening submissions. He submitted:

Whatever else might be comprehended within those expressions [“operated on”, “conducted surgery”, “performed surgery” and “performed osseointegration surgery”], the natural and ordinary meaning of them, as any ordinary reasonable person would understand them, must involve taking a scalpel to the patient. If the respondents are not in a position to justify the imputations in that sense, particulars about other aspects of medical practice which might form part of an extended notion of “performing surgery”, such as preoperative consultations and informed consent procedures, will not assist them because they will have failed to justify what is obviously a material part of the imputations as pleaded, namely the performance of surgery stricto sensu.

69 The applicant’s oral opening submission was consistent with that. The applicant’s written closing submissions are in the exact same terms. This approach is also reflected in those written submissions that concern whether the justification defence has been established in relation to the imputations in issue. The reasons given in the annexure to the applicant’s submissions addressing why he contended justification is not established in relation to these imputations, refer to the imputations as involving negligent surgery, negligently conducting surgery, or conducting the actual operation. The broader imputation is not addressed.

70 It is in that context that the applicant’s oral closing submission, referred to above, was made. That is, at no point did he seek to define the meaning of “operation” or “surgical” or “surgery”, and it was not his job to do so. He submitted that the meaning of “operation” or “surgery” only becomes relevant for the truth case if there is a dispute about meaning. However, the first issue is whether the applicant has established that the imputation has been carried. If it has not, the occasion for a defence does not arise.

71 The applicant’s oral closing submission was ultimately, that at a minimum, the Court should find that the imputations are carried, even if I accept that the respondents’ view of surgery is correct. He submitted that the respondents have admitted the imputations are carried. He submitted his position as to the meaning of surgery is “not black and white” on every imputation, because of the context in which it occurred. However, in respect to the Disputed Imputations that is not how his case was conducted. For example, the applicant submitted the Sneak Peek, is only talking about surgery in the narrow sense. To illustrate, the applicant accepted that his position in relation to Mr Smith is that surgery meant the operation itself:

That his surgery, as a surgeon, caused Brennan Smith to cut his flesh off, caused him excruciating pain like being electrocuted, caused maggots in a surgical wound, surgery, negligent performance of surgery.

72 That is, Dr Al Muderis negligently conducted the operation which caused Mr Smith to cut off his own skin. His submission on the other imputations is consistent with that; that these imputations all relate to surgery in the narrow sense, and that they could not mean anything else. The applicant’s submission also does not sit with the manner he opened his case wherein he submitted the respondents need to establish the justification defence for these imputations in respect to surgery in the strict sense, without which the justification defence fails.

73 The applicant’s closing submission proceeded on the basis that the respondents admitted the Disputed Imputations are conveyed, but as explained above, the respondents did not admit these imputations were carried by the Publications if the meaning of the terms was construed in the narrow sense, being the operation or performance of the surgery itself.

74 The respondents submitted:

The ordinary reasonable person understands what surgery entails. They know that the surgeon’s role involves much more than the time spent in an operating theatre. They will appreciate that surgical practice involves assessing whether surgery is necessary, what type of surgery, whether the patient is a suitable candidate for that surgery, the disclosure of information about the surgery, the preparation of the patient for surgery, the performance of the surgery itself, and all aspects of ongoing post-surgical care, treatment and rehabilitation. When a person says in common parlance that they are “having surgery”, ordinary reasonable members of the community understand that this is not simply a reference to the process of laying on an operating table to undergo a surgical procedure. It is a reference to an entire process.

75 I accept that submission. As the respondents submitted, the narrow interpretation of the terms also does not reflect either the words or substance of the Publications, which do not contain any express allegation concerning Dr Al Muderis’ performance of surgery “in the operating theatre”. As explained below, in my view, the Publications convey acts which would be understood by the ordinary reader, as within the broader concept of what is involved in having surgery (not confined to what occurred in the operating theatre). Where the word surgery is used (which is limited), in context, would be understood by the ordinary reasonable reader to be referring to surgery of this type, not this operation. Where the word operation is used, it is a reference to the fact of the operation.

76 I accept the respondents’ submission that the applicant conducted his case on the basis of the meaning of the terms in the Disputed Imputations as surgery in the narrow sense (i.e. what occurred in the operating theatre which must involve taking a scalpel to a patient). That is the meaning of the imputations he intended to convey by his pleading, and on which he chose to rely.

77 The issue then becomes whether those imputations (on the meaning pleaded by the applicant, bearing in mind permissible variants) are carried. The relevant question is whether the Publications would have conveyed the alleged meanings to an ordinary reasonable person.

The Sneak Peek

78 The applicant pleaded six imputations in relation to the Sneak Peek, all of which he contended would be understood as having conveyed that Dr Al Muderis negligently operated or conducted surgery on a patient, specifically in the operating theatre. To use the applicant’s language, this “must involve taking a scalpel to the patient”.

79 I do not accept that the ordinary reasonable viewer would have understood this publication to impugn Dr Al Muderis’ conduct of surgery in the operating theatre. That is not what is conveyed by the Sneak Peek. This is a very brief advertisement, promoting and directing attention to an upcoming program “on 60 Minutes”, that is, the Broadcast. The publication directs attention to the substantive broadcast. Given that context, as the respondents submitted, it does not descend to any level of detail as to the type of conduct attributed to Dr Al Muderis. The terms pleaded (being negligent surgery, negligently conducting surgery, or negligence in performing surgery) are not used in that publication, save for one reference to surgery, but not in the sense relied on by the applicant. That sole reference in the Sneak Peek to surgery pertains to the question posed by Mr Steinfort to Mr Smith: “What sort of surgery leaves you having to cut your own flesh off?” As evident from the use of the phrase “sort of surgery”, in context, it conveys a type of surgery as opposed to the conduct or performance of a particular operation. There is no reference to “conducted surgery”, “performing surgery”, “operated on”, or “surgical abilities”, being the terms used in the pleaded imputations. Rather, the publication conveys false promises, broken promises, patients turning against Dr Al Muderis, and complications arising after surgery (e.g. smells akin to a dead body, excruciating pain or needing to cut off flesh).

80 Contrary to the applicant’s submission, the Sneak Peek does not convey that Dr Al Muderis was negligent in the operating theatre during the operation such that it caused Mr Smith to cut his own flesh off and experience excruciating pain likened to being electrocuted.

81 The applicant submitted that as an imputation contains all variant meanings, even if a broad view of surgery is accepted, his case does not fail.

82 That raises the issue of whether, what is conveyed, is a permissible variant. I am not persuaded that surgery in the broad sense is a mere variant or nuance of surgery in the narrow sense. The focus in the latter interpretation is on a confined aspect of conduct (Dr Al Muderis’ conduct in performing the operation) whereas, the Publications had as their focus, the broader concept.

The Broadcast

83 In relation to the Broadcast, the imputations in issue, [13.2], [13.6] and [13.20], all relate to Mr Urquhart, and include the allegation that Dr Al Muderis negligently performed surgery on him.

84 I do not accept that the ordinary reasonable viewer would have understood the Broadcast to impugn Dr Al Muderis’ conduct towards Mr Urquhart in performing the surgery in the operating theatre. The nature of the complaints that supposedly have patients turning against Dr Al Muderis is identified at the outset:

Now a number of the surgeon’s patients are turning against him, accusing him of not taking proper care of them. And when you see the evidence you’ll understand why they’re so angry.

85 That is the framing of the Broadcast. As the respondents submitted, the reference to “care” was sufficiently broad to have been understood as extending to all aspects of Dr Al Muderis’ care for patients.

86 There are several other instances in the Broadcast which support the respondents’ submission. For example (any emphasis is added):

(1)    shortly after the above statement, there is a clip of Mr Urquhart with Mr Steinfort referencing out-of-control infections and maggots in a voiceover;

(2)    the Broadcast then turns to Mr Smith with Mr Steinfort’s voiceover describing him as “a patient feeling so abandoned he had to take to his own leg with a kitchen knife” over a video to this effect, followed by Mr Smith’s interview where he describes the excruciating pain he experienced;

(3)    Mr Steinfort remarks that “[t]hese patients are left feeling like they’re just a number”;

(4)    the Broadcast returns to Mr Urquhart with Mr Steinfort referring to the fact that within three months of rehabilitation he was able to walk, but there were “horrible complications” including pain, infections, repulsive odour, what is known as the “Febreze incident” (discussed further below) and maggots;

(5)    the Broadcast also returns to Mr Smith, with Mr Steinfort referring to his hypergranulation, with Mr Smith saying “if you take on a job you take it on and start to finish to its entirety, and you got a responsibility and duty of care”, to which Mr Steinfort responds: “Care’s the important word there isn’t it?”;

(6)    the Broadcast shows Ms Grieve and Mr Steinfort discussing their joint investigation, and Ms Grieve saying “[s]o we’ve got traumas, infections” followed by Mr Steinfort describing in a voiceover that Ms Grieve interviewed overseas patients “who felt neglected after Dr Al Muderis operated on them”, such that Ms Grieve described a theme of Dr Al Muderis abandoning patients, over-promising and viewing patients as numbers;

(7)    following Ms Stewart’s interview, Mr Steinfort remarks that “Shona says once operated on, rehabilitation care for patients was inconsistent”;

(8)    in his interview with Dr Anstee, Mr Steinfort notes “[c]omplications will arise. I guess the issue is how well you manage those complications”, to which Dr Anstee responds: “Yeah. And how well you plan to avoid the complications. But if you do have a complication, you’ve got to wear it. That’s your problem until you die or the patient dies.” Mr Steinfort further asks “[i]s there any excuse for a surgeon to – to palm that off to someone else?” and Dr Anstee replies “… you’ve got to look after the patient”;

(9)    Mr Steinfort’s voiceover: “While some question how well Dr Al Muderis looks after his patients …”;

(10)    the Broadcast later turns to Mr Bruha, and Mr Steinfort’s voiceover remarks “… like a number of other patients, his wound became infected”, Mr Bruha stating in his interview that “[t]hey sent me home with an infection in my leg and an open wound”, and Mr Steinfort’s later voiceover that “Chris Bruha has ongoing issues with pain”;

(11)    regarding Ms Cindy Asch-Martin, the Broadcast states “even Cindy admits she did suffer major complications and was sent back to America afterwards with a dangerous infection”; and

(12)    in the course of his interview with Mr Steinfort, Dr Al Muderis was asked about abandoning Mr Urquhart, maggots as a complication, downplaying infection and odour by recommending the use of Febreze, performing procedures and hosting medical clinics in the United States potentially in breach of United States laws, high-pressure sales tactics, encouraging staff to teach patients how to fundraise for the surgery, being motivated by money, paying people to recruit patients and mobilising patients to protect his reputation.

87 As the respondents submitted:

Conspicuously absent from all of this was any suggestion, complaint, allegation or accusation that Dr Al Muderis had at any stage acted negligently when performing surgical procedures “in the operating theatre”.

88 I agree with that description. I accept the respondents’ submission that ordinary reasonable viewers would have understood the Broadcast as conveying that Dr Al Muderis has engaged in negligence or other discreditable conduct in his practice as a surgeon generally and specifically in relation to Mr Urquhart, including the disclosure of risks and post-operative care. Again, it is difficult to accept this is simply a mere variant or nuance of the pleaded imputations.

89 I am not satisfied that Imputations [13.2], [13.6] and [13.20] are conveyed.

The Articles

90 In relation to the SMH Article and the Age Article, the Disputed Imputations are [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30].

91 As the respondents submitted, the headline for each article (which for reference are “Surgeon ‘botched amputee aftercare’” and “Celebrity surgeon ‘left patients in pain, to rot’”) are plainly directed to the quality of Dr Al Muderis’ post-operative care. Thereafter, the Articles are virtually the same. The focus on aftercare is reinforced at the commencement of the article:

[Dr Al Muderis] has been accused by patients and former staff of failing to provide adequate care following surgeries, leaving some people mutilated, wheelchair-bound or reliant on heavy pain medication.

92 There are several other examples in the body of these articles which support the respondents’ submission. Given these articles are virtually indistinguishable, the following examples are taken from the contents of the Age Article, which will apply mutatis mutandis to the SMH Article (any emphasis is added).

93 In the introductory portion of the article:

(1)    the statement “[b]ut now more than 25 patients, 15 surgeons and a dozen of Al Muderis’ current and former business associates have told the Herald and 60 Minutes of concerns about the surgeon’s approach to patient selection and aftercare” and similarly “[i]nterviews with more than 25 patients, 15 surgeons and a dozen of Al Muderis’ current and former business associates have raised questions about the professor’s approach to patient selection and care”;

(2)    the statement “[h]e has also been accused of using high-pressure sales tactics to boost patient numbers”;

(3)    the statement “veterans Mark Urquhart and Brennan Smith claim they were not properly warned of the risks and were left in agonising pain”;

(4)    the statement “Urquhart, a former paratrooper, claims to have been ignored when he found maggots in his leg after his bone was left exposed for years”; and

(5)    the statement “Al Muderis denied using high-pressure sales tactics and apologised to patients who felt abandoned but said these were a disgruntled minority”.

94 In the remainder of the article:

(1)    the article turns to the individual experiences of a number of Dr Al Muderis’ patients. One of these stories is that of Mr Urquhart and includes the statement that “the procedure left the veteran with a chronic infection and the worst pain he had ever experienced”. This is later followed by a description of the “Febreze incident” (discussed elsewhere in the judgment), being a matter that arose during post-operative care;

(2)    the statement “[s]ome [patients] say risks were minimised when their operations were explained, complications ignored and patients left wheelchair-bound or mutilated”;

(3)    the statement “Al Muderis acknowledged in an interview that mistakes had been made, and he apologised to patients who felt abandoned or hurt”. Later in the article, Dr Al Muderis’ comment includes “I acknowledge that people have the feeling that we did not do our duty of care. This is not the aim. We try our best to give every patient the care they deserve”;

(4)    after returning to Mr Urquhart again, the statement “[f]or years, [Mr Urquhart] says he was told the smell of rotting flesh, redness, oozing pus and blood were normal and part of the healing process. Even when Urquhart’s wound was infested by maggots, he was told there was nothing to worry about”. The article also later describes “Al Muderis went ahead [with the surgery] nonetheless. A year later Urquhart was in unbearable pain”;

(5)    following mention of Ms Stewart’s role with Dr Al Muderis’ clinic, the statement that she “quit in 2017 after she became uncomfortable with the clinic’s approach to patient selection and aftercare”;

(6)    following mention of patients getting in touch after Dr Al Muderis became aware of the investigation, the statement “[s]upporters sent a large number of emails detailing the benefits of osseointegration and praising Al Muderis’ personal care”; and

(7)    following mention of Dr Anstee, his comment directed to the management of complications that “[c]omplications will arise” and “if you do have a complication, you’ve got to wear it. You’re the surgeon. It’s your problem. You fix it”.

95 In the article’s break-out section:

(1)    for Ms Todd, that she “has chronic pain after osseointegration” and her statement “I was standing in my laundry, and about half a litre of blood and pus came out of my leg. I’ve been dealing with infections ever since”;

(2)    for Ms Ulrich, that after surgery she developed a blood clot which medical staff failed to detect, nearly costing her life;

(3)    for Mr Smith, that he “was in so much pain from his osseointegration he began cutting his own skin off”, and his statement “[t]he after-care was non-existent”;

(4)    for Mr Warland, that he “lost his house, relationship and job after pain related to osseointegration” and his statement that his experience since osseointegration has been “a rollercoaster”;

(5)    for Mr Bruha, that Dr Al Muderis failed to treat a post-surgical infection, was difficult to contact and then downplayed the infection;

(6)    for Ms Koolhoven, her complaint that after returning to California she “started running into problems and didn’t get answers”, followed by a summary of her experience of replacing her implant after falling post-surgery; and

(7)    regarding an anonymous patient, the statement “he treated me like a cash cow”.

96 The respondents submitted, with reference to some of these examples, that ordinary reasonable readers of those articles are likely to have understood them as raising significant allegations and concerns about several aspects of Dr Al Muderis’ surgical practice, including disclosure of risks, patient selection, management of complications, adequacy of post-operative care, abandoning patients and questionable marketing and sales tactics, but not his competence in the operating theatre. The respondents noted for example, that conspicuously absent from the introductory section of the articles was any suggestion of negligence in the operating theatre. I agree that is what would have been conveyed to the ordinary reader.

97 The SMH Online Article and the Age Online Article, are materially the same as their printed counterparts, save for what is at [38], [51], [91], [97]-[98] of those matters, attached to this judgment as Annexures D and F. Those passages relate to pre- and post-surgical events. The Disputed Imputations regarding these articles are [16.4], [16.8], [16.13], [16.15], [16.20] and [16.23]. Of the additional passages [38], [51] and [91] are directed to post-surgery, while [97]-[98] are about patient selection.

98 Again, ordinary readers of those publications would have understood those articles to convey meanings that Dr Al Muderis has engaged in negligence (as the term is explained below) or other discreditable conduct in his practice as a surgeon generally (and particularly in relation to disclosure of risks, patient selection and post-operative care).

99 I am not satisfied that the Disputed Imputations in the Articles are conveyed.

Conclusion

100 It follows that I am not satisfied the Disputed Imputations, being [10.1]-[10.6] (Sneak Peek), [13.2], [13.6], [13.20] (Broadcast), [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30] (Articles) are carried. I am satisfied that the respondents can rely on those imputations containing the broader understanding of having surgery, as contextual imputations for the purpose of their contextual truth defence. I am also not satisfied that the Denied Imputations, being [13.24] (Broadcast) and [16.1] (in respect of the SMH Article, the SMH Online Article and the Age Online Article) are carried.

Section 4 — Meaning of “negligence” and “unethical” in the imputations

Negligence

101 An issue arose during closing about the meaning of negligence. The respondents submitted the pleaded imputations fall to be considered by reference to the ordinary meaning of terms, not their legal meanings, because it is the way the terms would be understood by ordinary reasonable people, not lawyers, and not taken to have a detailed knowledge of the law, citing inter alia, Trkulja at [32] and Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 (Herron) at [30], [73]. They submitted that therefore, for the purposes of the Publications and the pleaded imputations, “negligence” should not be equated with a failure to meet a particular legal or professional standard of competence. The respondents submitted that it would not, for example, have been understood by ordinary reasonable viewers and readers as requiring the existence of a tortious duty of care having regard to a complex reconciliation of “salient features” such as proximity, foreseeability, knowledge, control, vulnerability, reliance and public policy considerations. Nor, they contended, would it have been understood as connoting a failure by Dr Al Muderis to discharge such a duty by exercising the standard of care and skill expected of a specialist orthopaedic surgeon in his position (having regard to the consensus of medical opinion in that field) in order to guard against a reasonably foreseeable risk of injury, loss or damage. Such concepts are alien to ordinary reasonable viewers and readers. It was submitted that rather, in so far as the Publications conveyed meanings that Dr Al Muderis had acted “negligently”, they would have been understood by ordinary reasonable viewers and readers as amounting to an allegation that Dr Al Muderis had acted with neglect, by failing to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected. This might include acts of carelessness. They submitted that although dictionary definitions ought not be overemphasised, the respondents’ posited construction has the advantage of being broadly consistent with dictionary meanings of “negligence”.

102 The applicant’s written closing submissions accepted that one considers the natural and ordinary meaning of the word but contended that it corresponds with its legal meaning, such that legislation may ultimately feed into that meaning (and outlined the features that were contained within that meaning with reference to medical negligence case law). He submitted that an ordinary and reasonable person would understand that “negligence, medical negligence against a doctor, is a legal concept, and it is a legal term”. The applicant submitted that therefore:

[t]o prove an imputation that a doctor has been guilty of negligence requires proof not merely of an adverse outcome, nor even an error which a reasonably competent professional person acting with ordinary care might commit, but of [an] act or omission showing a lack of reasonable care or skill causing harm.

103 The applicant relied in aid of his submission on: Haddon v Forsyth [2011] NSWSC 123 (Haddon) at [241]; Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 (Lehrmann) at [568]; and Edwards v Nine Network Australia Pty Ltd (No 5) [2024] FCA 422 (Edwards) at [161]. However, those cases reflect that it is the natural and ordinary meaning of terms, not their legal meanings, that apply. Although the legal meaning may provide some guidance (or may in some circumstances coincide with or closely resemble the natural and ordinary meaning), it is the ordinary and natural meaning of the words in the context in which they appear that is pertinent to the consideration: e.g. Haddon at [241] and Edwards at [161]. However, those cases do not reason that an ordinary and reasonable viewer would understand the word in issue to have a technical meaning, and therefore, the technical meaning is what would be conveyed.

104 I do not accept the applicant’s submission. The characteristics of the ordinary reasonable viewer or reader are described above (see Consideration in Part 2, Section 3).

105 The word “negligence” (or any deviation thereof) does not appear in the Publications, but is a term relied on by the pleader (see e.g. of the Imputations carried: [13.22], [16.2], [16.3], [16.6], [16.7], [16.12], [16.25], [16.26] and [28.4]). I agree with the respondents’ submission that, given that fact, ordinary and reasonable viewers and readers would not have understood the Publications to convey the legal concept of negligence. Properly considered, the ordinary reasonable viewers and readers of the Publications would consider that they were alleging in this regard that Dr Al Muderis had acted with neglect, by failing to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected. I do not consider that the natural and ordinary meaning of the word, in context, corresponds with its legal meaning.

106 The applicant’s submission is artificial. As the respondents correctly observed, the fallacy of the applicant’s submission is reflected by the features he said legal concepts encompassed, because the ordinary and reasonable viewer is not likely to have understood, let alone invoked, the concepts he identified.

107 In oral closing submissions, the applicant submitted that as the Amended Defence in relation to the respondents’ justification claim refers to negligence, it must be taken to mean the concept in its legal sense. However, the problem with that contention is that the Amended Defence (and evidence) is directed to responding to the imputations pleaded, and to justifying those imputations. The respondents’ reference to the word “negligence” for this purpose does not mean they accept the applicant’s contended meaning of it. As explained above, the ordinary reasonable viewer and reader would not have understood that negligence in the legal sense is what was conveyed. The pleaded imputations are relied on by the respondents to establish the justification defences. The respondents pleaded the Amended Defence in terms that corresponded to the SOC. They are not required to establish the substantial truth of something not conveyed by the Publications. The respondents are only required to establish what is conveyed is substantially true.

Unethical

108 The term unethical appears in Imputations [16.10], [28.8] and [28.9]. The meaning of unethical is also that which will have been understood by ordinary reasonable viewers and readers in its ordinary sense. It follows that in respect to the justification defence, which is a defence to the meanings published, the issue whether the words employed were true in substance and in fact is to be determined by reference to the same standard as to whether the defamatory meaning was conveyed. The respondents submitted that “unethical”, in the context of the Publications, meant conduct that fell short of the standards of honesty, integrity, candour, morality or propriety that ordinary persons in the position of Dr Al Muderis’ patients would have expected, citing, inter alia, the Australian Concise Oxford Dictionary 5th Edition as follows:

not ethical, esp. unscrupulous in business in professional conduct; see also the definition of ‘ethical’: 1 relating to morals, esp. as concerning human conduct; 2 morally correct; honourable.

109 I accept that is how the concept of unethical would have been understood.

PART 3 — FACT FINDING

Section 1 — Onus and standard of proof

110 As already referred to, the applicant bears the onus of proof in relation to whether the imputations are conveyed in the Publications. The respondents carry the onus of proof with respect to their defences.

111 As to the standard of proof, the Evidence Act 1995 (Cth) applies to these proceedings and s 140 of that Act is in the following terms:

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

112 The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations: see e.g. Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555; (2023) 417 ALR 267 (Roberts-Smith) at [96]-[97].

113 The principles as to the approach to the application of s 140 are well established and have been discussed recently by this Court in, inter alia, Roberts-Smith at [96]-[110], and in the judgment of the Full Court, Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCAFC 67 (Roberts-Smith (Appeal)) at [15]-[21]. They are not in dispute between the parties.

114 Nonetheless, it is appropriate to refer briefly to the discussion in Roberts-Smith (Appeal). There, the Court observed that “[t]he difference between the criminal and civil standards of proof is ‘not a mere matter of words’ but one of ‘critical substance’; in a civil case, ‘no matter how grave the fact which is to be found … the mind has only to be reasonably satisfied’”, quoting Reifek v McElroy [1965] HCA 46; (1965) 112 CLR 517: Roberts-Smith (Appeal) at [16]. The Full Court recited with approval the passage from Bromwich J in Australian Competition and Consumer Commission v Delta Automation Pty Ltd [2023] FCA 880 at [56]-[57]. The Court also quoted from the oft cited passage from Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences …

115 The Full Court also referred to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 450, before observing that these principles have effectively been codified in s 140 of the Evidence Act.

116 As recently explained by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [57] per Kiefel CJ, Gageler and Jagot JJ:

Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.

117 As those and other cases outline, cogent evidence commensurate with the seriousness of the allegations is required. I have approached the standard of proof in accordance with these principles.

118 The respondents accepted that the gravity of the conduct alleged against Dr Al Muderis is serious and that a high degree of moral opprobrium attaches to conduct of the kind alleged.

119 The respondents also submitted that the approach to fact-finding necessitated by s 140(2) is equally applicable to: (a) each of the factual findings that Dr Al Muderis seeks against the respondents in support of his alleged entitlement to aggravated damages; and (b) each of the factual findings that Dr Al Muderis invites the Court to make in defeasance of the respondents’ honest opinion defences. The respondents submitted that Dr Al Muderis seeks serious adverse findings in relation to the respondents’ honesty (wherein the applicant asserted, inter alia, that the respondents engaged in a campaign to denigrate him and conspired with former patients to concoct complaints) tantamount to allegations of dishonesty or fraud.

120 I accept that s 140(2) also applies to the allegations made by the applicant.

121 I have applied s 140(2), and the principles relating thereto, to my assessment of the evidence and factual findings.

Section 2 — Browne v Dunn

122 The applicant criticised the respondents for failing to cross-examine his expert witnesses and put certain propositions to them, including by allegedly failing to cross-examine them about alleged “standard practices”. The applicant also submitted the respondents failed to cross-examine medical professionals present at the consultations. The applicant alleged this conduct breached Browne v Dunn (1893) 6 R 67.

123 The respondents submitted, referring to authority as to the import of Browne v Dunn, that there were no such breaches. The respondents submitted that they were required to go into evidence by affidavit (including expert evidence) on matters in respect of which they bore the burden of proof before the applicant. The applicant also had the benefit of the detailed particulars of justification in the respondents’ Amended Defence. By the time the respondents had served all their evidence and expert reports, the applicant was properly on notice of the case being advanced and the case he would have to meet at trial. This included the patients’ recollections of what they were told or not told during consultations.

124 As to the complaint about the cross-examination of others present at the consultations, the respondents correctly observed that, overwhelmingly, the evidence adduced by Dr Al Muderis from persons who were present at consultations was silent as to what they saw, observed, and said in those consultations. The respondents submitted that they were not required to cross-examine to “plug [the] holes” in the applicant’s evidence. The evidence had been challenged in the manner described (i.e. the respondents had already put on their evidence addressing the issues).

125 The respondents submitted that, in those circumstances, they had discharged their obligations pursuant to the rule in Browne v Dunn, citing Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607 (Allied Pastoral Holdings) at 16; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 (Masterton) at [105]; Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40], [42]; Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; (2019) 100 NSWLR 155 at [123]-[128].

126 Of these authorities, the respondents expressly referred to Masterton in their oral submissions, reciting the passage at [105]:

While the evidence was not cross-examined on, that does not necessarily mean that the judge was obliged to accept it. A judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible: Sullman v Sullman [2002] DFC ¶95-248; [2002] NSWSC 169 at [304]-[306]; Caldwell v J A Neilson Investments Pty Ltd (2007) 69 NSWLR 120; [2007] NSWCA 3 at [96]; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-8. Nor did the rule in Browne v Dunn (1893) 6 R 67 (Browne) prevent the judge from rejecting the evidence. That is because Ms Maude had given her evidence on affidavit in advance of the trial … and Mr Miles had replied to that affidavit in advance of the trial … Exchange prior to trial of affidavits that disclose the position of the respective parties concerning a particular evidentiary matter can prevent a Browne point being successfully raised: West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 at [95]-[99]. Thus, I do not accept that the absence of cross-examination required the judge to accept [the witness’] evidence.

127 The other authorities referred to above are to the same effect.

128 The applicant did not address these submissions, or Masterton, in his written reply filed after the oral hearing, but rather chose simply to repeat the criticism he made earlier.

129 Rather, in his reply, the applicant relied on Griffiths v TUI (UK) Ltd [2023] UKSC 48; (2023) 3 WLR 1204 (Griffiths) to contend that the consequence of the failure to challenge the plaintiff’s expert in that case was that the Supreme Court accepted that unchallenged evidence, allowing the appeal accordingly (at [78]). That submission is misplaced. Leaving aside the question of whether there was a failure to cross-examine in this case, Griffiths does not support a conclusion that the failure of the respondents to challenge the applicant’s experts’ evidence in cross-examination in this case meant the evidence should not be permitted to be challenged in address. To the contrary, at [69] of Griffiths, Lord Hodge DPSC (with whom the Supreme Court agreed) referred to Browne v Dunn as a rule of fairness, and not an inflexible one, with its application varying depending on the circumstances of the case. I do not accept the applicant’s submission. Further, Griffiths is a case factually far removed from this one. In that case, no affidavit or report was ultimately relied on by the cross-examiner in advance, meaning that the expert evidence was uncontroverted as it was not in conflict with any other evidence led at the trial.

130 This case is to be considered in the context of the authorities referred to above at [125]-[126]. The applicant was on notice of the respondents’ case. In respect to the expert evidence, the applicant chose to lead rather limited evidence from his experts in his case. As discussed elsewhere, there is an issue with the independence of these witnesses. If the applicant chose not to address certain topics in his experts’ evidence, the respondents are not required to cross-examine them.

131 As to the cross-examination in relation to the consultations, the applicant was on notice of the respondents’ case on this topic. I note that in limited circumstances, the applicant’s witnesses who were present at Dr Al Muderis’ consultations did address in their affidavit evidence a particular consultation with a patient (for example, Mr Grieve and Mr Urquhart), which reflects the obvious, that he was on notice of the respondents’ case. That the applicant chose not to have his witnesses address other consultations in their affidavits, was a forensic decision he made. I accept the respondents’ submission, that they were not required to plug holes in the applicant’s evidence.

132 The applicant’s submissions fail to appreciate the premise of Browne v Dunn, it being a rule of practice underpinned by procedural fairness. It applies where the other party is not on notice of the cross-examiner’s intention to rely on a particular matter, to give the witness an opportunity to respond to it: see e.g. Allied Pastoral Holdings at 16. That is not this case.

133 I am not satisfied that there has been any breach of Browne v Dunn in relation to the topics referred to above.

Section 3 — Jones v Dunkel

134 The applicant relies on what he says is the respondents’ failure to call witnesses: Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298; the failure to ask witnesses who are called (by either side) about material matters: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom); the failure to tender relevant documents: Jones v Dunkel at 320-321; and the act of destroying relevant documents: Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 (Allen v Tobias) at 375-376, submitting that these are all matters which the Court ought to take into account in deciding whether the respondents have discharged their various burdens of proof.

135 During oral closing submissions, the applicant identified persons he said should have been called such that the failure to do so engages Jones v Dunkel. Before addressing those submissions, it is necessary to consider the principles discussed in Jones v Dunkel because, generally, the way in which those submissions were advanced, failed to grapple with such principles.

136 The rule is that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case, so entitling a court to more readily draw an inference against that party: Jones v Dunkel at 308, 312, 320-321; Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 (Cubillo) at [353]. The rule only applies where a party is “required to explain or contradict” something. No inference can be drawn unless evidence is given of facts “requiring an answer”: see Jones v Dunkel at 319, 321-322; Cubillo at [355]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [51]; Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103]. The rule is not to be used to complete gaps in the evidence or to convert conjecture into inference. As explained in Cubillo at [353], while it is possible to state the rule in general terms, its application must be considered in relation to each situation in which a witness is alleged to be absent.

137 I will address the submissions in respect to the nominated witnesses when considering evidence on the topic.

138 However, there are three matters appropriate to address at this stage.

139 First, the applicant submitted that an inference should be drawn from the respondents’ failure to call its confidential sources. The applicant accepted during closing submissions, that was a rational decision because if they were called to give evidence, they could have been asked questions about whether they were a confidential source, therefore rendering it rational for the respondents to protect them by not calling them. In relation to the s 29A public interest defence, he submitted the witnesses ought to have been called because there is a dispute with Ms Grieve’s affidavit being “wholly inconsistent with her notes in serious respects” in circumstances where Ms Grieve destroyed documents. The sources were also said to be relevant to the truth defence, where the applicant asserted that Drs Phil Huang, Sean Nicklin, and Andrew Wines, as well as Mr Steven Gray are confidential sources who had direct interactions with various patients. The applicant submitted that the respondents “tactically elect[ed] to not call key witnesses. Every inference can be drawn against them for that”. When pressed that there was an accepted rational basis for the respondents’ decision not to call the sources, he submitted the failure should be “held against them” arguing it was a “reasonable journalistic decision, not a litigation decision”. When pressed on what the inferences were, the applicant submitted that:

The inference is that, for Mr Mortimer, the evidence of Mr Gray could not have assisted them. For Mr Urquhart, the evidence of Dr Huang could not have assisted them. … I can’t say that there’s – they positively would have said things. All I can say is that they couldn’t have assisted the respondents’ case.

140 Reciting the summary of the submissions reflects the generality in which they were advanced.

141 The submission falls at the first hurdle. Jones v Dunkel is only triggered when the failure of a party to call a witness is unexplained. As the respondents submitted, in relation to the confidential sources, the obvious and reasonable explanation for the respondents’ failure to call any of them as witnesses is the existence of the respondents’ confidentiality obligations, which were upheld by the Court: Al Muderis v Nine Network Australia Pty Ltd [2023] FCA 1623. Indeed, as mentioned above, the applicant accepted that the decision not to call them is a rational one. The distinction drawn by the applicant between a journalistic and a litigation decision for the purposes of Jones v Dunkel, is artificial. It has no support in Jones v Dunkel. Not surprisingly, explanations for a failure to call a witness often include matters personal to the witness (e.g. ill-health). The question is whether the failure to call the witness is unexplained. On the applicant’s own submission, this failure is explained, and as the applicant accepted, the decision is plainly a rational one.

142 The applicant’s submission that there was evidence the respondents had made an agreement with their confidential sources not to call them, has no foundation. The applicant does not point to any such evidence, but rather simply makes the bald assertion.

143 In any event, the applicant did not and could not articulate the inference sought to be drawn. The submission that “every adverse inference” ought to be drawn against the respondents for failure to call their confidential sources is meaningless, without identification of the inferences and the basis for them. To submit simply that the witness would not assist the respondents’ case of a particular patient is plainly insufficient. So too, is a generalised assertion about inconsistencies in relation to Ms Grieve’s affidavit in circumstances where the applicant pointed to no specific inconsistency. The applicant must, inter alia, identify the inference sought in each case and the existing ground in the evidence that would warrant the drawing of that inference: see Jones v Dunkel at 309-310. Nor has the applicant identified what is required to be explained, contradicted, or answered.

144 I am not prepared to draw any Jones v Dunkel inference in relation to the confidential sources.

145 Second, as the respondents submitted, there is no obligation on a party to adduce evidence that is merely corroborative of, or cumulative upon, other evidence. The rule does not compel time to be wasted by calling unnecessary witnesses: Cubillo at [360]; s 164(1) Evidence Act.

146 The submissions in respect to lay witnesses also generally suffered from the same failures. To take one example. In respect to Mr Billy Wynne III, the applicant submitted that his wife, Ms Wynne, was a witness to many of the events described in his affidavit, and although she sat in the courtroom during his evidence, she was not called as a witness, such that a Jones v Dunkel inference should be drawn accordingly. That was the extent of the submission, with no identification of the inferences the applicant was asking the Court to draw or the basis of them. As the respondents submitted, her evidence was “unneeded”.

147 I am not prepared to draw an adverse inference from the failure to call Ms Wynne.

148 Third, the applicant placed reliance on the respondents’ failure to call Dr Solon Rosenblatt, (Dr Al Muderis’ former representative in the United States), to give evidence. The respondents submitted the evidence was equivocal as to which party’s ‘camp’ he resided. Although the respondents accepted that Dr Rosenblatt was one of the respondents’ sources – in that he spoke to Ms Grieve – they pointed to the evidence in Dr Al Muderis’ cross-examination, that he was also in regular communication with Dr Rosenblatt concerning Ms Lisa Çalan, including during, or very shortly before, the commencement of the trial. It was submitted in those circumstances that although there may have been some falling out, there was some evidence to suggest that position did not persist given Dr Al Muderis’ evidence as at 22 September 2023, which indicated he was receiving recent updates from Dr Rosenblatt.

149 The respondents submitted that no inference should be drawn, rather it is a neutral point, because Dr Rosenblatt cannot be said to be in the respondents’ camp.

150 I accept the position of Dr Rosenblatt is unclear, and therefore in that circumstance, I am not prepared to draw any Jones v Dunkel inference.

151 On the other topics raised by the applicant, I note the submission about the failure to tender relevant documents is based on Jones v Dunkel at 320-321 and involves the same reasoning process as described above. A similar process is involved in reasoning in respect to the failure to ask witnesses who are called about material matters, which is described as a Ferrcom inference. These matters are addressed when they arise in considering the evidence.

152 In relation to the final matter – the act of destroying relevant documents – I return to address Allen v Tobias in detail below in considering the s 29A defence in Part 9.

Section 4 — Contemporaneous documents

153 In summary, the applicant submitted that the Court should proceed on the basis of the contemporaneous documents and the evidence of Dr Al Muderis’ standard practice, where there is a conflict between such evidence and the evidence of a patient.

154 The applicant submitted that fact-finding should be based, as much as possible, on “contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]. Contemporary documents are usually the most reliable source of evidence as to what occurred and are usually a good reference point for assessing the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25]. While the evidence of witnesses should not be disregarded, greater weight is usually accorded to contemporaneous documentary evidence, citing Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 (Bathurst) at [1247]-[1248]; Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157]; Volonakis v Erceg [2019] NSWSC 1875 (Volonakis) at [150]; Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427 (Sampson v Tannous) at [61].

155 The applicant pointed to three factors which he submitted support the proposition that his documents can be expected to be a reliable record of what occurred: (1) Dr Al Muderis’ documents were created contemporaneously, and with a small handful of exceptions, before there was any reason to believe that there would be a controversy in relation to the patient’s care; (2) in many cases, the document is not Dr Al Muderis’ document alone. Many of the documentary exhibits were created partly or wholly by nurses or fellows or formed part of hospital records. The notion that those documents are inaccurate, incomplete or unreliable implies that other professionals were also negligent or complicit in misconduct; and (3) in many cases, Dr Al Muderis’ consultation reports were provided to the patient him or herself at the relevant time. If the reports misrepresented what occurred at the consultation, one might expect the patient to have taken issue with this.

156 The applicant submitted that where so many of the facts in issue concern medical advice, which may be complex and nuanced, or diagnosis, which may depend on precise details, witness evidence alone (particularly lay witness evidence) is generally an unreliable basis on which to make findings. He submitted that is not to say that the witnesses were necessarily subjectively dishonest, citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 534 and Wong v National Australia Bank Ltd [2022] FCAFC 155 at [129], although the applicant contended that in some cases they were.

157 The applicant pointed to several reasons why the recollections of witnesses may be unreliable, even when the witness is adamant about the quality of their memory. He also submitted that, in addition to specific credibility issues regarding each witness, which I address when considering that witness, there were some general reasons why less reliance could be placed on the witness testimony in this case, especially in so far as it is inconsistent with documentary evidence.

158 The applicant submitted that this included: (1) the complexity of the medical issues is such that witnesses (especially lay witnesses) are unlikely to be able to recall the relevant facts with the level of specificity or precision necessary to reliably support findings on key questions, such as whether a patient had an infection at a particular time; (2) although it might sometimes be thought that a patient is more likely to have an accurate memory of a medical consultation or procedure, because it is a major event in their life, that reasoning is less plausible in this case because most of these patients have complex medical histories and have had many procedures and consultations with a number of different specialists; (3) there are examples of patients talking to each other about their experiences with Dr Al Muderis and about this proceeding. The patient’s perception of their experience with Dr Al Muderis and their evidence may have been influenced by information or opinions shared by others; and (4) in the majority of cases, the patients did not come forward with any complaints about the care they had received from Dr Al Muderis until after the publication of the matters. The patients’ perception of their experience with Dr Al Muderis may have been influenced by the way he was represented in the matters. The applicant submitted that as the lay witnesses gave their evidence-in-chief by way of affidavits, contemporaneous documentary evidence is of greater importance, referring to Lehrmann at [763]-[764]. He also submitted the oral evidence of a witness carries greater significance than affidavits curated by lawyers. The applicant referred to Lehrmann at [763]-[764], where Lee J said, in the circumstances of that case, that affidavit material would be accepted if it was persuasive “in the sense that it [did] not jar with candid contemporaneous representations”.

159 The premise underlying the reliance on contemporaneous documents is uncontroversial: Sampson v Tannous at [62]. Where there are disputed facts from events occurring many years ago, contemporaneous documents, where available, “are invaluable and often more revealing of the true position than flawed attempts at recollection by those with an interest in the outcome of the litigation”: Bathurst at [1247]. That is not to suggest that evidence of witnesses should be disregarded. Rather, it is said that greater weight is usually accorded to contemporaneous documentary evidence.

160 As the respondents correctly submitted, this is not to be elevated to an inflexible rule. The authorities make clear that these are questions of fact that turn on the quality of the evidence in each case, bearing in mind the issues for determination: Volonakis at [150]; Sampson v Tannous at [62].

161 That said, I am mindful of the frailties of human recollection and the difficulties which affidavits can present. I am also mindful of the effect of the passage of time on human memory and the processes of memory being overlaid by perceptions or self-interest as well as conscious considerations of what should have been or could have been said. I must also bear in mind the possible effect of rumours and discussions and the capacity of the human mind for ex post facto rationalisation of events and the phenomenon of false memories: see discussion in Roberts-Smith at [163]-[166]. I take these matters into account in assessing the evidence. The respondents submitted that the patients’ evidence was compelling, consistent on key issues and corroborated by contemporaneous records. I address this when considering the case studies.

162 I consider the documentary evidence below, in application to the evidence and issues in this case. Suffice to say at this stage, the application of the principles is not as straightforward as the applicant suggests. For example, the applicant’s submissions as to his documents and their reliability treats them all the same. As explained below, I accept that in relation to documents generated by him, or on his behalf, there are issues as to their reliability (for some). As the respondents submitted, many of Dr Al Muderis’ documents and record-keeping appeared to be formulaic and riddled with errors, and as described elsewhere, no contemporaneous consultation reports appear to exist in relation to some consultations. I note also that although the applicant submitted his documents are to be relied on, in some instances he claims a meaning to them, or a qualification on their contents which is contrary to the plain reading. It is to be borne in mind also that although the applicant’s submission is referring to medical records, the contemporaneous records in this case are broader.

163 I assess each witness below. In assessing the credit of a witness and their reliability, it is necessary to have regard to the whole of the witness’ evidence while at the same time recognising that the witness may be correct as to one matter and mistaken as to another, or truthful as to one matter and dishonest as to another. It is uncontroversial that the rejection of a witness’ evidence on one topic does not necessarily mean they are not to be accepted on others: CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94]. It has long been recognised that it is for the Court, having seen and heard the witness, to decide whether the evidence is worthy of acceptance, which may involve accepting or rejecting the whole of the evidence, or accepting some and rejecting the rest: Cubillo at [118]-[123]. As will be apparent from the discussion in relation to the patient case studies, for the most part, the evidence I have relied on is supported by other evidence. Although the supporting evidence may be in the form of contemporaneous documentation, it is not necessarily confined to that. It may also, depending on the circumstances, be in the form of evidence from other witnesses, including other patients and the applicant himself.

164 This simply illustrates at this stage, as explained in the authorities, that the application of the principles is to be considered on the evidence.

Section 5 — Standard practice

165 The applicant referred to many authorities as to the relevance of Dr Al Muderis’ standard practice. This included Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 at [28], where the High Court succinctly described as a “basic proposition” that:

To prove an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case.

See also Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721.

166 The applicant submitted that if a professional person habitually follows an established practice or procedure in certain situations, it is reasonable to infer that it is more likely than not that he or she would have followed the same practice on the relevant occasion.

167 The applicant referred to two cases where he said this principle has been applied to make findings about the content of advice given by professionals such as lawyers and doctors to illustrate his point: Palios Meegan & Nicholson Holdings Pty Ltd v Shore [2010] SASCFC 21; (2010) 108 SASR 31 (Palios); and Phelan v Melbourne Health [2019] VSCA 205 (Phelan) respectively.

168 The respondents took issue with the applicant’s description that Phelan bears a factual resemblance to this case. Briefly summarised, the issue in Phelan was whether certain medical advice had been given, in circumstances where the patient purported to have a specific recollection that it was not, and where the doctors had no specific recollection of that patient but said the advice in question “would have been given” because it was their standard practice to give that advice in such cases. The respondents pointed out that Phelan concerned only one patient, whereas this case involves a “significant cohort of patients giving strikingly similar evidence”. In reply, the applicant submitted it makes no difference that there is more than one patient, as each individual case must be analysed on its own merits. Both approaches are rather simplistic. There are several factual differences between this case and those relied on by the applicant, and the reasoning in Phelan depended in part on the evidence particular to that case and on the credit findings in respect to the relevant witnesses. That said, the fact that there is more than one patient who gives evidence on a topic, depending on the evidence, may be relevant. The applicant’s submission fails to recognise that while individual cases are to be analysed, depending on the evidence, they are not to be done so in isolation.

169 The applicant submitted that the respondents do not grapple with the significance of the evidence of Dr Al Muderis’ standard practices.

170 However, properly read, Phelan (and Palios) illustrate no more than each case is fact specific. As the Court observed in Phelan at [84]:

Plainly, the weight to be given to the evidence of usual practice, and the question whether that evidence is to be preferred, must depend upon the specific nature and quality of the evidence that is given in the particular case.

171 The applicant’s closing written submissions devoted a section to this topic entitled “standard processes and procedures in Dr Al Muderis’ practice”, which addressed the following: the booking process and arrival at Dr Al Muderis’ rooms; the assessment by Dr Al Muderis and other specialists; the discussion of risks and complications; consultation reports; post-consultation procedures; procedures on the day of the surgery; and rehabilitation and post-operative procedures. Some of these topics are more contentious than others. For some, while the fact of an event occurring may not be contentious, the content of it may be.

172 Where relevant, I address these topics below. However, several issues arise as to the content of what is said to be Dr Al Muderis’ standard practice. To take four examples.

173 First, in so far as consultation reports are addressed by the applicant under this section, it is difficult to understand what is said to be the relevant standard practice except that either Dr Al Muderis or a fellow would dictate the consultation report. For example, if the purpose of these reports is said to be part of the standard practice, the evidence in the applicant’s case as to this, is inconsistent. If it is the content of the reports that is said to be part of the standard practice, there are issues as to the accuracy and reliability of some of the reports. No consultation reports appear to exist in relation to some consultations.

174 Those and other issues with the consultation reports are addressed separately below (see Part 6, Section 1).

175 Second, in so far as the affidavit evidence of Dr Al Muderis and the other doctors from his clinic who gave evidence refers to a standard practice – including in respect to conducting group consultations and what is said about risks and complications at such consultations – that practice is stated in absolute terms. However, the practice described did not apply to the American (or other international) patients who were called in this case. Indeed, what occurred in relation to those patients, as reflected in the consideration of those patients below, does not accord with the practices referred to in the applicant’s affidavit evidence (or that of his witnesses).

176 Third, on some of the occasions in cross-examination where the applicant referred to what he did as part of his standard practice, it is only his evidence of that practice being standard (particularly, in relation to some of the American patients). For example, his evidence in cross-examination was that he routinely tells international patients that their surgery booking is only “tentative” and therefore not confirmed. This is addressed below but suffice to say that his evidence of that purported standard practice is inconsistent with all the relevant documentation sent to those patients from his office.

177 Fourth, I will address the issues in relation to risks and complications below. Suffice to say, although the witnesses for the applicant gave evidence of what they say was a standard practice regarding what the patients are told, there are inconsistencies between them. For example, Dr Al Muderis asserted that he told all patients that “infection is a matter of when, not if” and that “there is a 100% chance that [they] will develop an infection at some stage”. Although Dr Kevin Tetsworth also gave evidence that every patient is told there is a 100% chance of getting an infection, Drs Tim O’Carrigan and Chris Basten and Ms Claudia Roberts referred only to this being regularly said, and Dr Karan Doshi did not recall it being said at all (and agreed that if it was said, it was important to be recorded in the consultation report). I note for completeness that Ms Shona Stewart (a former nurse called by the respondents) said some patients may have been told that but did not remember it being “part of every conversation”. It was put to only some patients in cross-examination, and even fewer said they were told that information. As explained below, only one of the consultation reports in evidence recorded that was said. In relation to the other reports concerning the patients’ first consultations, those tendered generally recorded that there was a “low”, or “relatively low risk” of infection: see Consultation reports, Part 6, Section 1 below.

178 Those examples serve to illustrate that, as described in Phelan, the question of whether standard practice evidence is to be preferred, depends upon the specific nature and quality of the evidence that is given in a particular case. It also depends on the issues to be determined in the case. It is unnecessary to make findings about matters not relevant to determining the issues in the proceedings. Therefore, it is neither necessary nor appropriate to determine Dr Al Muderis’ standard practice on a topic (if there be one) in a vacuum. I return to this topic below.

PART 4 — DEFENCES: INTRODUCTORY REMARKS

179 The respondents rely on three defences: contextual truth, honest opinion and public interest. Although justification is pleaded, it is only a complete defence where all imputations are substantially true, and the respondents did not plead that in respect to four imputations (being, [13.24], [16.9], [16.28] and [28.6]). As the respondents submitted in closing, on truth, this is a case of contextual truth. That said, it is necessary for that purpose to consider the concept of substantial truth.

180 The respondents submitted in closing that I could commence by considering the public interest defence, and if that was found to be established, it would be unnecessary to consider the remaining defences. However, given the time devoted to the justification defences, I consider it appropriate to commence with that issue. I then turn to consider the public interest defence.

181 Given my conclusions in respect of those two defences, I do not consider it necessary to consider the honest opinion defence. It would unnecessarily delay delivering what is already a very lengthy judgment.

182 It is appropriate to recall, as observed at the outset, that this is not a medical negligence case. The relevant issues are determined based on the principles applicable in defamation proceedings.

183 As a preliminary note to the reader, this judgment includes many extracted quotes from evidence including, inter alia, transcripts, messages, emails, medical reports and other documentary evidence. This has been done to accurately capture the evidence before the Court and the experiences of the witnesses in their own words. In most cases, I have extracted the quotes verbatim such that any typos or grammatical errors that were originally contained within the source document have been reproduced. Where necessary to understand the meaning of a quote in context, I have replaced certain aspects as delineated by square brackets.

PART 5 — SECTIONS 25 AND 26

Overview

184 The respondents presented their case on this defence by calling patients to give evidence of their experiences with Dr Al Muderis. The respondents called 29 patient witnesses, with the hearing involving 33 patient case studies (two patients were deceased, Mr Ford and Mrs Gollan; one patient was not available to testify, Ms Young; and one patient had an affidavit from her filed by the applicant, but she was not called, Patient X). This included not only those named in the Publications, but a broader range of patients. Mr Urquhart, Mr Smith, Mr Bruha, Ms Ulrich, Ms Todd, Ms Koolhoven (formerly Ortiz), and Mr Warland, were patients referred to in the Publications and have a case study. Mr Mortimer was a confidential source of Ms Grieve who later agreed to give evidence.

185 There were both osseointegration and orthopaedic patients. Those patients were presented, in effect, as case studies, with additional evidence being led from other witnesses (e.g. medical and expert witnesses) and documents tendered (e.g. medical records and correspondence) in relation to each case study. These reasons will address each of the case studies individually, which will involve a consideration of the evidence relied on by the respondents and the applicant for each patient. It is after considering each of the case studies that the defamatory stings to the Publications (discussed below) will be addressed.

186 It is helpful to outline the structure of this section. After some preliminary observations in respect to the pleadings, the relevant legal principles will be referred to.

Preliminary observation

187 There is a dispute between the parties as to the adequacy of the pleadings in respect to this aspect of the proceedings.

188 The principal bases for the applicant’s complaint were that various aspects of the respondents’ evidence have not been particularised in the defence; in defamation cases the matters and circumstances supporting a defence of justification or contextual truth must be particularised with detail and specificity; and anything outside of the particulars in the defence is not relevant. The applicant contended that he should not be required to defend every aspect of his treatment of the 33 patients pleaded in the defence without notice. It was submitted that it was necessary to plead which aspects of the treatment were alleged to have been improper.

189 This complaint as to the pleadings was not raised prior to the hearing and nor was there any application to strike out aspects of the defence.

190 To the contrary, the matter proceeded to hearing by the filing of affidavits by each party in respect to the applicant’s primary case and the respondents’ defences, including justification. There was no suggestion that the applicant was unable to prepare evidence in response to affidavits filed by the respondents in relation to the patients (and any medical evidence). The premise underpinning the applicant’s submission – that he was not on notice of various matters referred to in the respondents’ affidavits (filed in advance of the applicant’s evidence) – was generally not accepted during the hearing. The rulings I made on each objection on this basis are evident from the transcript, and it is not necessary or appropriate to refer to each occasion. Below are some additional observations.

191 The pleading is to be assessed against the purpose it is to serve. It is important in that context to remember, as Dawson J said in Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 293, “[p]leadings are but a means to an end and not an end in themselves”.

192 In Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], the Court observed that:

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 (at 664–665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach: see the observations of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (at [4]–[8]). Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 (at 668–669) per Stephen, Mason and Jacobs JJ and Water Board v Maustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497) per Mason CJ and Wilson, Brennan and Dawson JJ.

193 This was recently cited with approval in Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388 at [152].

194 Although this case alleges defamation, these principles apply with equal force.

195 In Herron, a ground of appeal related to the admissibility of evidence in relation to patients who were not particularised in the defence. At [404] of Herron, the factual basis of the ground was described by Lee J as follows:

Dr Gill submitted the primary judge erred in admitting and relying on evidence in respect of patients treated at Chelmsford who were not particularised in the publishers’ defence. It is said that the publishers relied upon evidence (both medical records and hearsay notices) that went well beyond the patients identified in their defence as “case studies” who suffered adverse outcomes during their treatment and other patients who are said to have not consented (or provided informed consent) to the treatment they received at Chelmsford.

196 The argument was ventilated during cross-examination of the witnesses on the eighth day of the hearing (though it had been raised on the fourth day and was deferred). At [415] of Herron, Lee J recites the primary judge’s ruling:

On the eighth day of the trial, when the issue was again ventilated, submissions were made on the issue and her Honour made the following ruling (which, although directed to the issue of the fraud allegation, both parties accepted also relates more broadly to the allegation as to a lack of particularisation of patients):

HER HONOUR: … In my view, there is sufficient particularisation of the allegation of fraud in the sense that it is a straightforward allegation that between two periods of time, Dr Herron, as he was, was charging patients for an anaesthetic treatment accompanying ECT when no anaesthetic was administered. What’s missing from the particulars is identification of the patients who were charged, and while it can be said, with the benefit of hindsight, that the pleading is inadequate in this respect, it was always clear from the correspondence from the respondents that the respondents did not consider that they had to provide the names of patients in this regard, and no application was made by the applicant to strike out the pleading.

Rather, the applicants … have waited until the hearing … to allege that documentary evidence in support of the particular cannot be relied upon because of the inadequacy of the particular. It seems to me that it was incumbent upon the applicants to move to either obtain an order for further particularisation or to strike out the particular on the basis of the inadequacy at a much earlier time.

(emphasis in original)

197 On appeal, it was necessary for the appellants to establish an error of the kind identified in House v King [1936] HCA 40; (1936) 55 CLR 499. Lee J accepted that any error of the primary judge cannot be identified by some failure to apply the strictures of the rules relating to pleadings and particulars. That was said to be “because her Honour’s ruling … is caveated with the acceptance that ‘it can be said, with the benefit of hindsight, that the pleading is inadequate’”: Herron at [418]. This ground of appeal was dismissed. Wigney J at [262] of Herron agreed with Lee J, and his Honour’s reasoning. Rares J did not consider it necessary to address the ground given his conclusion on other grounds.

198 Lee J found no error for three reasons. First, it was open to find that the publishers were not sitting on the evidence of Mr Green (a patient who had not been particularised in the publishers’ defence) and purposefully did not inform Mr Herron and Dr Gill (the appellants) that he may be the subject of questioning. Second, there was no reason to doubt that it was open for her Honour to conclude that in the circumstances no “real prejudice to the applicants arising from the admission” of the materials was established by Mr Herron and Dr Gill. Third, “and more importantly, the primary judge was right to point out that, given the parties remained in contest as to the adequacy of the pleadings, more was needed than, in effect, relying on objections being taken at trial as to the scope of the case”: Herron at [419].

199 As to the third point, his Honour observed at [420]:

This Court runs a docket system. One advantage of such a system is that the judge case managing the case will usually be the trial judge, and there is every opportunity of raising matters relevant to the conduct of the trial with the presiding judge promptly, and in advance of the final hearing. If a dispute arises as to the ambit of the case and there is an apparent asymmetry of understanding between the parties, the days have long passed where it is appropriate (if it ever was) to simply put a stake in the ground and say objection will be taken at trial. An issue as to the ambit of the case requires resolution and for symmetry to be restored, perhaps by requiring the provision of further particulars or an amendment to pleadings, or for such a resolution to be refused and it being made plain, in advance of trial, that foreshadowed evidence will not be admissible as it falls outside the permissible ambit of the case. The present dispute was identified and joined in advance of trial and, consistently with the dictates of Pt VB of the Federal Court of Australia Act 1976 (Cth), Mr Herron and Dr Gill should have pressed to bring these matters to a head before the docket judge and have them resolved. Modern case management imperatives mean it was insufficient for Mr Herron and Dr Gill to sit tight and simply assume that their characterisation of the pleading and the scope of the case, which was being put in contest, would find favour at the hearing.

200 Those observations are equally apt in this case.

201 The issue first arose during cross-examination of Ms Roberts, an early witness in the applicant’s case (and called before the applicant himself). Objection was taken to some questions on the basis that a matter had not been pleaded in the defence. I did not agree with many of the submissions that the relevant matter was not pleaded. The applicant also conflated pleadings with evidence, which does not need to be pleaded. There is a well-established distinction between particulars and evidence, a pleading contains the former, not the evidence to be relied on to prove the case: Palram Australia Pty Ltd v Rees [2013] FCA 649 at [31]. The evidence adduced at trial will inevitably be more detailed: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [49].

202 In any event, the applicant was on notice of these matters complained of. In that context, I allowed the questions to be asked if it was relevant to the issues in the proceedings. That said, on occasions when the applicant submitted that he was taken by surprise by the questioning (although not accepted) and needed time to address the evidence, he was given that time and afforded an opportunity to consider his position in relation to the evidence. He was allowed time to address the evidence. This approach was apparent from very early in the applicant’s case. The conduct of his case thereafter is in that context.

203 The conduct of the case at the time the objection was raised, and thereafter, does not support the applicant’s contention that he is prejudiced by any of the evidence objected to. Rather, it bespeaks the opposite.

204 The applicant was aware of the evidence of the patient witnesses, and (with limited exception which only became apparent during the hearing) any medical evidence in support. The 33 patient case studies related to patients who were all, at one time, the applicant’s patients. The applicant has the records in relation to them. Indeed, the applicant had filed affidavit and documentary evidence in response, which detailed his dealings with the patients, in chronological order. The applicant also filed expert reports. In opening, the applicant addressed some of the patients, and was prepared to specifically allege, inter alia, that they were lying, giving false evidence or that the particulars pleaded in relation to them were incorrect or “lies”.

205 The applicant did not bring any pre-trial application in respect to the pleadings. That the applicant wished the matter to proceed to trial as expeditiously as possible (which he submitted was his reason for not bringing a pre-hearing motion), was a forensic decision made by him. As Jagot J observed on ruling the evidence admissible at first instance in Herron, “it was incumbent upon the applicants to move to either obtain an order for further particularisation or to strike out the particular on the basis of the inadequacy at a much earlier time”: Herron at [415]. As Lee J correctly observed in Herron, Jagot J was right to point out that, given the parties remained in contest as to the adequacy of the pleadings, more was needed than, in effect, relying on objections being taken at trial as to the scope of the case.

206 Further, this issue arises in circumstances where this matter, at the applicant’s request, was listed for hearing expeditiously. Any imperfections in pleadings (where I accepted during the hearing there were some) must be considered in that context. The context also includes that the applicant, in his affidavits, addressed the history of his interactions with the patient witnesses, not confined to those matters pleaded. It was said by the applicant that that was done as a matter of chronology. However, the applicant’s approach, evident from the filing of his evidence and reflected in cross-examination and closing submissions, was that it is necessary to consider each of the patients with a full chronology of what happened with each patient, starting from how they came to be in Dr Al Muderis’ care, and then what relevantly occurred thereafter. It was submitted that was the only approach the Court could properly adopt. On the applicant’s approach, he could give evidence of such matters, but any evidence from the relevant patient which addressed those matters could not be led unless it was in the pleadings (although the applicant was on notice about it as it was referred to in the affidavits filed by the respondents before the hearing). That approach is artificial, and not conducive to determining the issues justly.

207 It should also be observed that during the hearing the applicant accepted that, generally, an objection that evidence was not relevant was made only on the basis that it was not referred to in the pleadings. That is, it was accepted that such evidence was relevant to the issues for determination, with the only basis of objection being a failure to plead the allegations (or evidence).

208 The applicant submitted in closing that they held the respondents to their pleading. Such a submission misstates a party’s capacity to direct the course of the proceedings. The course of proceedings is in the control of the Court. That control is to be exercised for the attainment of a just outcome: Betfair Pty Limited v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356 at [55].

209 Despite the applicant continuing to contend in closing submissions that he has been prejudiced, no prejudice has been identified, and there is no evidence in support. The mere assertion in submissions is insufficient, particularly in circumstances where some of the applicant’s speculation proffered in submissions during the trial, was not carried through. I will refer to just one example of alleged prejudice which concerns the topic of why payment from overseas patients was required in advance of their arrival to Australia. Early in the hearing, the applicant objected to cross-examination on this topic on the basis this matter was not pleaded, and he was prejudiced because he could have led evidence from certain people to address this topic. I allowed the cross-examination, as the topic was relevant (as will be apparent from the discussion of the evidence below). Leaving aside the correctness of the underlying premise, the applicant chose not to lead any such evidence. The applicant was given an opportunity to address this topic during his own case, but did not do so. Rather, the only evidence he chose to lead on the topic was documents from a government website concerning the government requirements for obtaining a medical visa (which were led in reply). In his case in reply, the applicant submitted that an email tendered during the respondents’ case explained why the practice of prepayment was employed, being for a medical visa. Again, leaving aside the correctness of that assessment of the evidence, it was on that basis that the applicant tendered the government regulations in reply. That the applicant chose only to rely on that evidence was a forensic choice.

210 The applicant had ample opportunity to address the evidence led by the respondents. As a general proposition, I observe that one cannot choose, for forensic reasons, not to address evidence if an opportunity is given, simply to preserve a pleadings appeal point.

211 In this context it is also appropriate to record that during submissions which occurred on day 15 of the hearing (during the applicant’s evidence), the applicant advanced a case which went further than what was presented in opening (which included, amongst other things, a submission that patients and others were lying about the complaints), by alleging there was a concoction between various persons (some named by the applicant) to falsely disparage the applicant. It was alleged that the complaints were concocted, it appears, as a part of a plan or scheme. Although the patients were not named, it is plain from the submission that this was said to include patients. This case was not pleaded. When this was raised by the respondents, the applicant submitted it was unnecessary for him to plead this allegation. I do not agree. It is an allegation that these persons were acting dishonestly and were involved in fraudulent conduct. Such allegations should have been pleaded and should not have emerged on day 15. That said, the applicant was not prevented, based on a lack of pleading, from advancing his case in that regard. It has never been withdrawn, although the applicant did not advance a submission to that effect in closing submissions.

212 Finally, before leaving this topic, it appropriate to refer to my rulings in relation to the applicant’s case in reply, as that also was considered in the context of the orders made for the conduct of the hearing as described above. The respondents accepted that some topics had arisen during the hearing and as such were properly the subject of reply; but objected to some of the evidence, primarily on the basis it was an attempt by the applicant to adduce further evidence in chief many months after he had closed his case. That is, the applicant was on notice of these matters at the time of the respondents filing their evidence in chief, and there is no proper basis for him now seeking to rely on the evidence in reply. The applicant again relied on the failure of the respondents to plead matters. Again, my rulings and the bases thereof are evident from the transcript and unnecessary to repeat. I simply note three matters. First, when the topic of reply evidence was raised, the applicant identified possible witnesses because of “new evidence” of certain witnesses in the hearing. Those referred to relate to topics that arose during the hearing. The evidence the applicant ultimately sought to lead was broader. Generally, evidence can only be led in reply if it arises from matters that arose in the respondents’ case, and what arose was not reasonably foreseeable (although that rule is applied less strictly in civil cases). That is to be considered in the context of the case management orders made for the conduct of this hearing, as referred to above. In those circumstances, a party cannot hold back evidence to simply lead it in reply. Second, this was not a situation where in relation to expert evidence, the applicant was seeking to recall expert witnesses who had already given evidence as part of the applicant’s case in relation to a patient. I note that because in respect to one witness, Dr Qurashi, the expert report sought to be relied on in reply appeared to be based on a 2014 report he had prepared and addressed topics that were or could have been addressed by the expert witness called by the applicant for that patient. Reply is not simply an opportunity to lead further evidence from a different witness. That said, I did allow those witnesses to be called to give evidence on certain topics. Third, I did not generally permit evidence to be led in reply when the applicant was on notice of it. There was material that did arise after the close of the applicant’s case in respect to the case studies of Ms Mooney, Ms Heffernan, Mrs Gollan and Ms Ulrich. I permitted evidence to be called in reply which related to or was associated with that new material. In relation to Mrs Gollan, the circumstances were such that (including relating to the pleadings), I considered it appropriate the applicant be able to call evidence in reply (although the applicant was on notice of the evidence). The reply evidence is referred to when considering those patient case studies in Part 6.

Section 1 — Legal principles

Substantial truth

213 The respondents have pleaded the defence of justification or substantial truth under s 25 of the Defamation Act. Section 25 states that “[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”. Section 4 of the Defamation Act defines “substantially true” as “true in substance or not materially different from the truth”.

214 The respondents must establish that every material part of an imputation is true, with the defence of substantial truth being concerned with meeting the sting of the defamation: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138]. A “material part” is any detail which alters or aggravates the character of the imputations: Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.

215 Although this is a contextual truth case, the approach to assessing whether it has been established that an imputation is substantially true, applies.

216 To determine whether an allegation has been established to be substantially true, the allegation is considered in a non-technical, non-legal sense; in the way it would be understood by the ordinary reasonable viewer or reader. As discussed above, the ordinary reasonable viewer or reader is not a lawyer and is not taken to have detailed knowledge of the law: Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Trkulja at [32]. Therefore, where the natural and ordinary meaning of a publication is relied on, the meanings will fall to be considered by reference to the ordinary meaning of terms, not their legal meanings, because it is the way the terms would be understood by ordinary reasonable people, not lawyers, that is important: see e.g. Haddon at [34]; Lehrmann at [568].

217 In Sutherland v Stopes [1925] AC 47 at 78-79, Lord Shaw of Dunfermline explained:

It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it.

218 The focus is on the sting of the libel.

219 Where an applicant pleads that the respondent published an imputation alleging a general charge is conveyed, the respondent is entitled to give particulars demonstrating why that was true by reference to a wide variety of matters which are not confined to the facts in the article: Maisel v Financial Times Limited (1915) 112 LT 953 at 955; 84 LJKB 2145 at 2147; and see e.g. Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 at [38]-[41]; Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299 at [314]. This is orthodox and unexceptional. The respondents seek to justify many of the imputations by reference to facts beyond those included in the Publications. I accept that a number of the applicant’s pleaded imputations involve general charges that are capable of being justified by reference to facts not stated in the Publications: e.g. Imputations [10.1] (“negligently operated on his patients”), [10.2] (“deliberately misled his patients about his surgical abilities”), [13.1] (“falsely portrays himself as a devoted doctor”), [13.4] (“prioritises money over his patients’ care”), [13.14] (“runs his surgical practice as a numbers game”), [13.18] (“exploited vulnerable patients”), [16.1] (“is a callous surgeon who routinely left patients to rot”), [16.2] (“routinely negligently failed to provide after surgery care”), [16.5] (“uses improper sales tactics”), [16.10] (“glittering reputation and praise for his work as a surgeon is undeserved”), [16.25] (“negligent in his selection of patients”) and [16.26] (“habitually failed to explain risks and complications”).

Contextual truth

220 Section 26(1) of the Defamation Act prescribes a defence to the publication of defamatory matter if the respondent establishes that:

(1)    the matter carried one or more imputations that are substantially true (contextual imputations); and

(2)    any defamatory imputations of which the applicant complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.

221 The contextual imputations on which the respondent may rely to establish the defence include imputations of which the applicant complains: s 26(2) of the Defamation Act.

222 A defence of contextual truth “must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff’s stings”: Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78].

223 Prior to 1 July 2021, s 26 was in different terms. In particular, the amendment introduced s 26(2). That provision is significant in this case, as it is no longer necessary that a respondent’s contextual imputations be different in substance from an applicant’s pleaded imputations. As plain from the text of the provision, a respondent may now rely on any imputations carried by a publication, whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from, the imputations of which the applicant complains, as contextual imputations.

224 As mentioned, the respondents submitted that this case is really one of contextual truth. The respondents’ position was clearly articulated in their written submissions as follows. They rely on all the imputations to which they have pleaded a justification defence, including the Disputed Imputations, as contextual imputations. The respondents contended that ordinary reasonable readers and viewers of the Publications will not have understood them to convey imputations that Dr Al Muderis was negligent in his performance of surgery “in the operating theatre” but will rather have understood the references to “surgery” and like terms as extending to all aspects of Dr Al Muderis’ surgical practice. I resolved that dispute above. The respondents submitted the Publications conveyed the Disputed Imputations in the sense for which the respondents contended: that is, imputations to the effect that Dr Al Muderis was negligent in those aspects of his surgical practice relating to pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care. They submitted that so long as they were conveyed, the respondents are permitted to rely on them as contextual imputations for the purposes of s 26. It was submitted that the Disputed Imputations in this broader sense, together with the other imputations which are the subject of the contextual truth defence of the Amended Defence, are substantially true and that, taken together, the substantial truth of the contextual imputations swamps the defamatory effect of any residual imputations which the Court may find have not been proven to be true, such that any imputations which are not true do not further harm Dr Al Muderis’ reputation.

225 There is one aspect of this defence, being the approach to the assessment of further harm, which is the subject of dispute between the parties.

226 That is, the approach to assessing whether the defamatory imputation carried by the matter does not further harm the reputation of the applicant because of the substantial truth of the contextual imputations. The respondents submitted that the Court weighs the particulars, and the evidence relied upon in support of the substantial truth of the contextual imputations, and considers whether, in light of that evidence, the applicant’s reputation was not further harmed by the residual imputations of which the applicant complains, citing, inter alia, John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 (Blake) at [61] and Roberts-Smith at [2602].

227 On the other hand, the applicant submitted that the further harm requirement of s 26 should be understood as involving an assessment of whether the plaintiff’s imputations (taken together) harm the plaintiff’s reputation in light of the defamatory impact (truth of) the defendant’s contextual imputations. This was said to be because of an alleged difference in the language used in s 26 of the current Defamation Act and its predecessor, being s 16 of the Defamation Act 1974 (NSW), such that the task instead is to engage in a weighing of imputations, rather than a weighing of the evidence supporting the substantial truth of the imputations. He submitted that subsequent authority, which stems from the reasoning in Blake, does not apply, does not specifically address the distinction, or is plainly wrong.

228 The Full Court in Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 (Greiss), has since addressed this issue. One of the issues before the Court was whether the primary judge erred by relying upon decisions concerning the Defamation Act 1974 (NSW) and applying them to the application of s 26 of the Defamation Act. There it was submitted that the primary judge erred in holding that the Court’s focus in determining the question of further harm must be on the facts, matters and circumstances establishing the substantial truth of the contextual imputation, rather than the terms of the contextual imputation. The Full Court (Lee J, with whom Cheeseman and Jackman JJ agreed), held that no error in that regard was established, and concluded that the primary judge was correct to reason as she did, which was consistent with Blake: see Greiss at [59]. The Court also noted the application of the principle in this Court: see Nassif at [125] and Palmer v McGowan (No 5) [2022] FCA 893 at [321].

229 In Blake, Spigelman CJ (with whom Rolfe AJA agreed), in relation to s 16 of the Defamation Act 1974 (NSW), observed at [5]:

Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not “further injure the reputation of the plaintiff”. For purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.

(emphasis in original)

230 In Greiss, Lee J also pointed out at [60] that importantly, the primary judge also referred to Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19, where at [46] Applegarth J (Fraser JA and Douglas J agreeing) noted (emphasis added in Greiss):

The requirement to prove no further harm to the plaintiff’s reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This reflects the language of the section. The alternative approach of weighing the imputations about which the plaintiff complains, and the contextual imputations which are proven to be substantially true, may be a convenient shorthand or lead to no different outcome in practice.

231 In Greiss, Lee J concluded at [64]:

… there is no demonstrated “compelling reason” for this intermediate appellate court to depart from the decisions of other intermediate appellate courts on the operation of this statutory defence contained in uniform legislation.

232 Although in Greiss the former iteration of s 26 was considered, s 26(b) (the further harm requirement) is relevantly in the same terms. The mischief to which the amendments to s 26 were directed was only concerning the unintended uncertainty about whether a defendant can plead back a plaintiff’s imputations. It is that uncertainty that was rectified (which is permitted under the current version of s 26). There is nothing in the text of the new provision which would result in a conclusion that Greiss does not apply to the current provision. Indeed, as explained above, the premise of the submission was based on Blake being inapplicable or incorrect. The applicant did not draw any relevant distinction in this argument between the terms of s 26 as applied in Greiss, and its current form. I consider myself bound by Greiss. That said, in my view, the reasoning in Blake and later authorities is consistent with the text of s 26.

233 Therefore, in undertaking the assessment of whether the defamatory imputations do not further harm to the reputation of an applicant, the Court considers the facts, matters and circumstances relied upon to support the substantial truth of the contextual imputations rather than the terms of the imputations itself.

Section 2 — Defamatory stings

234 The applicant pleaded that the Publications carried 75 defamatory imputations. The respondents did not plead a truth defence with respect to four of those imputations (being Imputations [13.24], [16.9], [16.28] and [28.6]). They pleaded that the remaining 71 imputations were substantially true within the meaning of s 25 of the Defamation Act. The imputations are generally pitched by the applicant at the most serious level. That is a forensic choice he made but has the consequence that if it is not established, the imputation is not carried. That is what occurred in relation to the Sneak Peek, with six imputations being pleaded (from 24 lines of transcript) each alleging imputations confined to surgery (in the operating theatre). As stated above, I have not found those imputations to be carried.

235 The respondents submitted that the “scattergun pleading” of imputations is a “distraction”. Regardless, the volume of imputations (and their overlapping and repetitive nature) necessarily makes the resolution of the issues in these proceedings more time-consuming.

236 In that context, the respondents submitted that the Court is free to determine the meaning or meanings the Publications would be understood to convey to ordinary readers and viewers, applying the authorities in relation to the determination of meaning, subject to the caveat that an applicant cannot succeed on an imputation which is substantially different from or more serious than a pleaded imputation, citing inter alia, Wing at [22]. The respondents submitted that at a high level, the Publications would have been understood by ordinary viewers and readers to carry ten distinct defamatory stings covering conduct in relation to various aspects of Dr Al Muderis’ practice. In closing submissions, the respondents addressed what they contended is the evidence establishing the truth of those stings. In doing so, the respondents identified the imputations which they said fell within each sting, and the evidence relied on (in submissions and one of the aide memoires provided, being Aide Memoire 4). The respondents also identified which patients’ evidence is relevant to the proof of each of the imputations which is alleged to be substantially true (in Aide Memorie 6).

237 The applicant submitted that approach is in error because it is necessary to address each of the pleaded imputations and that can only be done by looking at each patient’s interaction with Dr Al Muderis and medical issues chronologically (as opposed to considering the patients per sting). As to the first aspect, contrary to the applicant’s submission, I do not take the respondents to be suggesting that the imputations as pleaded not be considered. As to the second aspect, although all the evidence must be considered, some of the imputations relate to discrete matters which are not necessarily impacted by the whole chronology of events relating to a patient. Similarly, to address the issues in this hearing, it is unnecessary to address the entire chronology for each patient in these reasons. The extent of my discussion in relation to each patient is necessarily impacted by the relevant matters (and issues) to be resolved. Moreover, the approach adopted by the applicant in his submission considers each patient in isolation. The applicant’s submission is that each individual case must be analysed on its own merits. As explained elsewhere, that fails to recognise that considering an individual case does not mean considering the evidence in isolation. There is no proper basis to do so, where the evidence of others (or other documents) may be relevant. Again, whether that is so depends on the issue being resolved. As apparent from my consideration of the evidence, I do address the patients, but only in respect to relevant issues. That has been considered in the context of all relevant evidence and submissions. They are not considered in isolation.

238 Nonetheless, considering the evidence in the context of the stings as they arise from the Publications (given the number and nature of the imputations), is appropriate. That said, as foreshadowed earlier, the respondents submitted that each of the pleaded imputations fits within one or more of ten stings. They identified them as follows:

(1)    misleading patients / false promises / failing to disclose risks;

(2)    poor patient selection;

(3)    improper sales tactics;

(4)    negligence in the operating theatre (but only if the applicant’s construction of the Disputed Imputations is accepted);

(5)    performing procedures illegally in the United States;

(6)    negligence in post-operative care;

(7)    abandoning patients;

(8)    prioritising money / fame / reputation / numbers;

(9)    poor treatment of staff; and

(10)    lying to 60 Minutes.

As can be seen, one of those stings (being, sting (4), negligence in the operating theatre) was only said to arise if I was against them in relation to the meaning of the Disputed Imputations, discussed above in Part 2, Section 3. Given my conclusion in relation to the Disputed Imputations above, the fourth sting is not carried. The respondents appeared to have derived the ten stings from some aggregation of the Publications. The proceedings concern seven discrete matters (i.e. the Publications), and any defamatory meaning is to be inferred with respect to each matter, not some aggregation thereof. As explained above, the respondents did identify which imputations, they said, are encompassed in each sting.

239 Each publication, assessed individually, would nonetheless have been understood by ordinary viewers or readers to carry fewer distinct defamatory imputations than the applicant suggested in his pleadings. According to the respondents’ categorisation, the Publications share certain stings which are, as a matter of practicality, the same; that is, certain stings are carried in more than one Publication. Generally, I agree with the respondents’ formulation of the stings. However, in my view there is no real distinction between the respondents’ stings (6) and (7) (noting also that they were addressed under the same rubric). Some imputations also carry more than one of the stings. It is also worth noting that three imputations (being Imputations [16.10], [28.8] and [28.9]) do not appear to be addressed by a sting number. In submissions they were grouped to encompass unethical conduct which is more properly categorised as a separate sting. Compiling the stings from the Publications, there are nine main stings. Although this reformulation may be in a different order, and use slightly different language, in general terms they accord with the respondents’ stings and convey Dr Al Muderis:

(1)    using improper sales tactics which pressures patients into having osseointegration surgery with him;

(2)    misleading osseointegration patients (e.g. false promises, downplaying the risks and complications of osseointegration surgery to patients);

(3)    engaging in poor patient selection for osseointegration surgery (including that assessments are inadequate);

(4)    providing negligent post-operative care;

(5)    performing surgery illegally in the United States;

(6)    prioritising money, fame, reputation and numbers over his patients;

(7)    mistreating his staff;

(8)    lied to the journalists investigating his practice; and

(9)    engaging in conduct that is unethical.

240 The reference to “negligent” and “unethical” in those stings each bear the meaning as described above: see Part 2, Section 4.

241 I return to these stings below. It is necessary at this stage to consider the evidence relevant to this defence.

Section 3 — Temporal limitation

242 In his written closing submissions, the applicant contended that where reliance is placed on events long before publication and there has been a substantial change of circumstances since that time, the evidence may have little probative force, referring to State of New South Wales v Wraydeh [2019] NSWCA 192 (Wraydeh) at [39]. The applicant submitted that in this case, for example, evidence of Dr Al Muderis’ surgical skill at or near the start of his surgical career proves little or nothing about his surgical skills during his surgical career years later. He submitted that evidence about practices five years or more before publication are not proof of current practices for the purposes of proving a present state of affairs (giving as examples, Imputations [13.1], [13.4], [13.13], [13.14], [13.16], [13.26], [13.30], [16.1], [16.4], [16.5], [16.10], [28.1], [28.5], [28.6], [28.7], [28.8] and [28.9], being imputations framed in the present tense). He submitted that there are no particulars in the Amended Defence of current practice to prove the substantial truth of any of these imputations.

243 The respondents correctly submitted this submission as to a temporal limitation to some of the applicant’s pleaded imputations (in particular, Imputations [13.26] and [16.1]) was raised for the first time in closing submissions. They submitted that none of the Publications purported to be directed only to a time that was temporally proximate to the date of publication and none of the pleaded imputations are so limited in their terms. They submitted that evidence that Dr Al Muderis was negligent in relation to a significant cohort of his patients is relevant to justify the pleaded imputations irrespective of when the negligence occurred. They also submitted that if Dr Al Muderis’ case was that his imputations were temporally limited, then he ought to have amended his SOC to make this clear or applied to strike out the Amended Defence as being unresponsive to the pleaded imputations. He did neither. The respondents contended it is not now open to the applicant to seek to restrict his case in this way at the end of a 65-day trial. I agree that it would be expected that if the imputations were temporally limited in the way the applicant contended, it would have been raised before closing submissions. There was no objection during the hearing to any of the evidence led based on a temporal limitation.

244 It is appropriate to briefly consider Wraydeh. This was an appeal from an interlocutory decision of the primary judge which allowed Mr Wraydeh, as the driver involved in a fatal car crash and who was referred to as a “criminal” in a press statement, to amend his statement of claim to adopt two contextual truth imputations. The State, in its defence, had pleaded contextual truth relying on two imputations, including an imputation of the general attribute “that the plaintiff is a criminal” which it sought to prove by evidence that Mr Wraydeh had prior criminal convictions unrelated to the events of the fatal crash. Mr Wraydeh thereafter sought leave to amend his pleading to adopt the two contextual imputations. At that time, the effect of such an amendment was that the imputation in question could no longer be a “contextual imputation” within the meaning of s 26 of the Defamation Act, even if proved to be substantially true (citing Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547).

245 One of the allegations on appeal was that the application to amend the pleading was an abuse of process. Part of that ground of appeal included an assertion that the primary judge erred in finding that the evidence of prior convictions was insufficient to constitute proof of an imputation that “the plaintiff is a criminal”. In addressing that ground, McCallum JA observed that the question raised was whether the “criminal” imputation must be known by the plaintiff to be true, in which case it ought to have been concluded the application to amend was an abuse of process in seeking vindication of reputation in respect of an imputation the truth of which cannot properly be controverted: at [34]. Her Honour observed that the submissions implicitly contended that, because the plaintiff had prior convictions, the imputation he is a criminal must be true to his knowledge. However, as held by the primary judge, that is contestable. It is in that context that the passage relied on by the applicant in those proceedings at [39] arose. Her Honour there observed (with whom Emmett AJA agreed):

That is not the position in the present case [that the imputation the truth of which is incontrovertible]. The question whether a person is to be characterised in the present tense as “a criminal” is not answered determinatively by establishing that he or she has committed a criminal offence in the past. In the first instance, as noted by the primary judge, that ignores the possibility of change and rehabilitation. Further, not every prior conviction would be regarded as necessarily warranting that label.

246 The applicant also relied on Simpson AJA at [58]:

Underlying the series of propositions is the unstated premise that a person who has a criminal record is, therefore, necessarily to be categorised as “a criminal”. The State relied (simplistically) on a dictionary definition of “criminal” as “a person guilty of or convicted of crime” (Macquarie Dictionary, 2nd ed). The premise, as McCallum JA says, is contestable. Whether a criminal history necessarily constitutes its owner a criminal will, in some cases, involve questions of fact and degree. Is a person convicted of shoplifting at age 18 forever to be branded “a criminal”? Is a person convicted of motor traffic offences (which are criminal in nature) to be branded “a criminal”? These questions do not arise in the present case. But they illustrate that the State’s propositions would involve this Court embarking on questions the determination of which properly lies within the province of a jury. It would only be in a very unusual case that the Court would, at an interlocutory stage, embark on the determination of the truth of a pleaded imputation. Yet that is what the State invited the primary judge, and this Court, to do.

247 As can be seen, the applicant’s submission puts a gloss on the observations relied on. The passages reflect that whether the evidence relied on in proving substantial truth establishes a proposition depends on the circumstances of the case. It does not create some principle that the evidence is of light weight, but rather the weight will necessarily depend on the evidence.

248 Moreover, the applicant’s submission is also based on a substantial change of circumstances and uses his surgical skill as an example. Acknowledging that the respondents have the onus to establish the defences, nonetheless, the applicant did not give evidence that what had occurred earlier had anything to do with his surgical skills – his evidence is he has done nothing wrong in respect to any of the patient witnesses. Further, as previously discussed, the stings from the Publications relate to surgery in the broad sense, not confined to the operating theatre. There is no evidence to suggest that the evidence of impugned practices has changed, but rather it was that the events as described did not occur (or are not to be interpreted in that manner).

249 Wraydeh does not support the applicant’s submission that practices five years or more before the Publications are not proof of current practices. The term of five years appears to be arbitrary. I note that elsewhere in his submissions the applicant submitted that a patient witness needed to be a “recent patient”, which he defined as persons who became a patient within two years of the Publications. Again, an arbitrary temporal limitation. The flaws of that approach are addressed at [261].

250 There is no proper basis to impose any temporal limitation on the evidence. Rather, whether the substantial truth of any imputation has been established will be assessed by considering the evidence relevant to that imputation.

Section 4 — Generalisation

251 The applicant submitted that the negative experiences of the patient witnesses are not generalisable in this case, in that general inferences about Dr Al Muderis’ practice cannot properly be drawn from the experiences of the individual patient witnesses selected by the respondents. He submitted the respondents needed to demonstrate that the methodology they employed to find these witnesses resulted in representative or random selection, referring to Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; (2018) 266 FCR 631 (Unique). In that case, the Full Court allowed an appeal against the judgment of the primary judge because, inter alia, his Honour had inferred a “system of conduct or pattern of behaviour” under s 21(4) of the Australian Consumer Law (ACL) in connection with the supply of online vocational education courses to consumers, based on the evidence of conduct in relation to four sites out of 428 and about six students out of 3,600, in the absence of any evidence as to how those sites or students were selected or whether they were representative or random: Unique at [162] and [208]. The applicant also referred to: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 (Capic) (a representative action for damages on the basis that Ford engaged in misleading and deceptive conduct under ss 18 and 33 of the ACL, and that vehicles were not of acceptable quality when supplied to consumers, under s 54 of the ACL); and Morsman (by his next friend Bampton) v State of Victoria (Department of Education and Training) [2020] FCA 763 (Morsman) (which involved violations of the Disability Discrimination Act 1992 (Cth), where the Court at [48] cited Unique to demonstrate “the difficulty of asserting from a series of unique instances that a system exists”).

252 From that, the applicant submitted that the respondents’ attempts to generalise the experience of the unhappy patient witnesses in this case cannot be accepted as there is no evidence that these patients are representative of or randomly selected from the thousands of patients that Dr Al Muderis has treated over the years. He submitted that the evidence establishes:

many of the respondents’ patient witnesses were patients that Mr Hernandez chose to refer to Ms Grieve, or patients who reported negative experiences to the respondents after the respondents grossly defamed Dr Al Muderis in their publications.

253 It was submitted that the respondents cannot logically use the anecdotal experiences of their patient witnesses to support proof of the general imputations. Proof of the general imputations required a far more rigorous methodology than was employed by the respondents in this case. The applicant also contended the patients had interacted with Ms Grieve and Ms Stewart before providing their affidavits or had approached the respondents after the Publications were published, and therefore were not representative of Dr Al Muderis’ patients. He also submitted that none of the respondents’ witnesses were “recent patients” and so none of them gave evidence to the current experience of prospective patients.

254 In addition, the applicant submitted that the respondents’ justification and contextual truth defences necessarily require them to prove a pattern of behaviour, referring to Imputations [13.1], [13.4], [13.13], [13.14], [13.19], [13.26], [16.26], [28.1], [28.8] and [28.9], which involve generalisations about Dr Al Muderis’ habitual practice. Although, as I note below, there is a dispute as to whether these imputations fall within the category of generalisations, the respondents admitted that each of those imputations are carried and purported to justify them. The applicant also pointed to certain words and phrases used in the Publications which he said supported the proposition that the matters allege a system or pattern by Dr Al Muderis. The applicant further submitted the substantial truth of Imputation [16.26], that he “is a negligent surgeon in that he has habitually failed to explain risks and complications to patients before performing osseointegration surgery”, cannot be established:

by the personal experiences of the relatively tiny and non-representative cohort selectively called as witnesses by the respondents, even if it were true that the experience of those witnesses was that risks and complications were not explained to them.

255 The applicant submitted that the matters were only newsworthy because they alleged a pattern or system of behaviour in Dr Al Muderis’ practice. He submitted that the proposition that a surgeon, even a high profile one, had some patients with complications or failed to provide sufficient aftercare in individual instances would hardly warrant a “special edition of 60 Minutes” or a “special investigation” on the front page of two major national newspapers. The public interest in the story is dependent on the allegations representing fundamental and systemic issues in his practice.

256 The respondents contended that this is not a case where the respondents rely on the experiences of a small sample of patients and invite the Court to draw inferences or make findings about Dr Al Muderis’ standard practices with his patients taken as a whole. They do not seek or need to establish a “pattern” or “system” of conduct based on extrapolation from a sample set. Rather, the respondents rely on evidence relating to a significant cohort of patients and assert that the similar experiences of that cohort are sufficient to justify imputations that Dr Al Muderis negligently operated on patients (Imputation [10.1]), deliberately misled his patients about his surgical abilities ([10.2]), does not take adequate care of his patients ([13.1]), behaved inexcusably towards his patients ([13.21]), misleads patients by downplaying risks ([13.30]), routinely failed to provide after surgery care ([16.2]) and negligently performs surgery on unsuitable patients ([16.4]). The respondents submitted that to justify imputations of this kind, they do not need to prove that Dr Al Muderis engages in the relevant conduct in relation to all his patients, or the majority, nor that he does so invariably. They contended that it is sufficient for the respondents to establish that he has done so in relation to a significant cohort of patients or that the conduct has occurred with sufficient frequency as to be more than just a coincidence or anomaly. They submitted the statements in Unique and Capic are not relevant.

257 This argument is directed only towards the generalised imputations, and there appears from the submissions to be a dispute about which fall within this category.

258 That said, as a general proposition, this case as presented does not have the character of the allegations in Unique, where the Court considered a claim of unconscionable conduct under s 21(4) of the ACL, which was based on allegations of a “system of conduct or pattern of behaviour” as those terms are used in s 21(4) of the ACL. Capic and Morsman are similar, in that the nature of the allegations required proof of a system. That is, what was necessary in those cases was proof of a system, pattern or representative conduct, which generally would not be satisfied by reference to individual examples. The Publications properly considered, do not bear that feature. In this case, the Publications do not allege that there is a system or practice by Dr Al Muderis, but that for a cohort of patients, he similarly did or failed to do things (e.g. failed to explain risks or complications, failed to provide post-operative care). That is, the picture portrayed by Dr Al Muderis about his services, is not the only one. In other words, there was another side to the story.

259 The passages of the Publications relied on by the applicant said to demonstrate his position, must be viewed in their proper context. This includes that it is readily apparent from the Publications the number of sources spoken to, and that would have been evident to the reader or viewer. For example, it is plain from the Broadcast that many patients have had positive experiences with Dr Al Muderis, and that some people regard him as “their God in a sense”. The Broadcast refers to another cohort of patients who feel like they have been abandoned so to show people have had polarising experiences. That does not bespeak of and would not have been understood by the viewer as referring to a system of conduct, in the manner considered in Unique. The example given by the applicant in the SMH Article is the reference to “concerns about the surgeon’s approach to patient selection and aftercare”, which is used to suggest – by relying on the word “approach” – that there were general problems with Dr Al Muderis’ practice. However, this is in the context of that article proximately referring to patients describing experiences “ranging from life-changing to life-destroying”. That is not referring to a system in the Unique sense, but that there is a cohort of patients negatively impacted by Dr Al Muderis’ services, and these patients are not, as the respondents described, outliers, or anomalies. An event can be frequent without it being systemic. I accept the respondents’ submission.

260 Given that, the applicant’s submissions directed to what he says are the flaws in choosing these patients, as noted above, do not have the significance on this issue as he contended.

261 That said, it is helpful to address one of those issues, being the applicant’s submission that the respondents did not call any “recent patients”, as it contains factual flaws. As noted earlier, the applicant defined such individuals as those who became a patient in the year or two preceding the Publications, which it is to be recalled were published in September 2022. It is difficult to understand why that approach is limited to patients seeing Dr Al Muderis for the first time within that time frame, when his imputations include the adequacy of Dr Al Muderis’ aftercare which, as he accepted for some earlier patients, he was still providing during that time. The submission fails to grapple with the import of the Publications. It is artificial and based on the premise of the case being a representative one, which as explained above, it is not. In any event, there is no suggestion in the evidence that there had been any relevant change to his practice, but rather the applicant’s case was these events did not occur, or there was no basis for complaint. The experiences of these patients are, if accepted, no less significant simply because they did not occur in that last one to two years before the Publications. Moreover, contrary to his submission, there were two case studies in relation to patients who first saw Dr Al Muderis in the two years before the Publications: Mr Ford (who is deceased); and Patient X (who was to be a witness for the applicant but was ultimately not called): see Part 6, Section 3 below. Further, there was evidence from Dr Al Muderis’ websites, obtained during the respondents’ investigation, including information sheets and brochures, which were material accessible by prospective patients as at the time of the Publications.

262 Suffice to say, I do not accept the applicant’s submission regarding what he described as “recent patients”.

Section 5 — The applicant’s witnesses

263 Although I refer to the applicant’s witnesses first, it is important to recall the respondents bear the onus of establishing this defence. In referring to the applicant’s witnesses, at this stage, I am addressing issues as to their assessment as witnesses. Although the content of their evidence is referred to later in these reasons, including in considering the patient case studies, I have taken it into account in assessing the witnesses.

264 In this section I only refer to the principal witnesses called by the applicant, with others being addressed when considering the issues to which their evidence is directed.

Dr Al Muderis

265 Three affidavits of Dr Al Muderis were read (subject to objections) and two expert reports tendered.

266 In summary, the respondents submitted that Dr Al Muderis was an extremely unsatisfactory witness. They submitted that he was evasive, inconsistent and in some instances untruthful. He gave answers in the fashion he thought would most assist his case. The respondents submitted that at times, Dr Al Muderis was an all-purpose medical expert able to opine on any subject that assisted him, and at other times, resisted answering questions on the basis that it was outside his expertise. He claimed to have no memory of certain events, and a very clear recollection of others, in circumstances where neither could be believed. It was submitted that Dr Al Muderis did not make appropriate concessions in his evidence, was incapable of admitting error, was combative, invented evidence, and changed his evidence to suit his case. It was submitted that Dr Al Muderis’ documentary evidence was unreliable, and extraordinary propositions were put to witnesses (it can be inferred on his instructions). The respondents provided detailed submissions said to illustrate each proposition. As a result, the respondents submitted that generally, the Court should find that: (a) where Dr Al Muderis’ evidence was at odds with contemporaneous records (subject to (c) below), the records should be preferred; (b) where Dr Al Muderis’ evidence was at odds with the credible recollection of a patient as to an interaction (or he had no recollection), the patient’s evidence should be accepted; and (c) Dr Al Muderis’ documentary records should be treated with a high degree of caution unless uncontroversial or corroborated.

267 In closing submissions in chief, Dr Al Muderis submitted he should be accepted as an honest witness, who was doing his best to answer the questions posed to him. The applicant also submitted that his memory of the complications and complaints patients had was impressive, even though he could not recall the dates that each such incident occurred. The applicant submitted in reply that it is not uncommon for very intelligent people and lawyers to make somewhat unsatisfactory witnesses, for example, because they tend to overthink questions, seek to anticipate the direction of the cross-examination, or advocate for themselves instead of simply taking the questions as they come. It was submitted that it is easy to describe this kind of conduct by a witness as unresponsiveness, but it does not necessarily follow that the witness is unreliable, let alone that the witness is not credible or is dishonest. Pausing there, even accepting that is so, that does not explain or account for the issues that arose in the applicant’s evidence.

268 The applicant submitted that he endured an uncommonly difficult cross-examination, because of its length and the complexity of its subject matter, in circumstances where he was required to explain the medical treatment of dozens of different patients out of thousands he has treated during his career and English is not his first language. I am conscious of, and have considered, the circumstances in which each of the witnesses were cross-examined. As the applicant conceded, Dr Al Muderis speaks English fluently. There was nothing about his evidence, nor any submissions made, which suggest any lack of understanding. That said, I accept that caution should be exercised before proceeding from any impression that he was not a good witness to a finding that he was also an unreliable or dishonest one.

269 I accept that Dr Al Muderis’ evidence generally bore the features described by the respondents. I have considered the various explanations proffered by the applicant, the length and circumstances of the cross-examination, and the criticisms he makes of the respondents’ manner of cross-examination.

270 In assessing Dr Al Muderis as a witness, I considered the applicant’s submissions. I am unable to accept the submission he was an honest witness, as he was not always honest in the answers he gave.

271 Dr Al Muderis was cross-examined for nearly ten days. A good deal of his evidence involved issues of fact. I gained the very strong impression that he answered questions based on what he considered would assist his case. This resulted in his evidence, at times, being inconsistent. I agree with the respondents that such inconsistencies included making up evidence to provide what he considered was a suitable answer. He was argumentative at times. He gave the very strong impression that he considered his answers and opinions were unchallengeable. Frequently, he did not accept the plain meaning of words in a text or email if they were, on their face, critical of him. Conversely, he embraced such matters when he saw it as favourable to him and wanted to rely on them. The same could be said of his recall of events. On many occasions in cross-examination when Dr Al Muderis was asked about what he had done in response to various acts or events, although claiming no recall, he proffered without any evidence in support, that he may have done something, for example had a phone call (even where it did not sit with the surrounding documentary evidence, e.g. messages). He frequently avoided or did not answer the question and rather volunteered answers which were not responsive but justified his position. He did not make appropriate concessions. These features are evident from the discussion of his evidence in the patient case studies below.

272 Dr Al Muderis also gave speeches justifying the importance of what he did and stressing the importance of his experience (including, by contrast with others), in what appeared to be an attempt to bolster his evidence. To give but one example: in the middle of an answer to a question on infection in cross-examination, Dr Al Muderis volunteered that his opinion is as “the person that has done the largest number of osseointegration surgeries in the world”. This was a statement made to suggest his opinion carried more weight and should be accepted above others. He sometimes made similar broad assertions to counter any criticism of himself.

273 As referred to above, two expert reports by Dr Al Muderis were tendered. The respondents submitted that although they did not press for the exclusion of Dr Al Muderis’ expert reports, the Court should find that, in relation to any issue of controversy, save where it is against his interests, the reports are to be approached with “sceptical caution”.

274 In each report he ascribed to the Harmonised Expert Witness Code of Conduct (Expert Code of Conduct), which includes that:

An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.

275 It is difficult to understand how an applicant to any proceedings could ascribe to being impartial in giving evidence. An applicant gives evidence to advance the case brought by them, with a self-evident interest in its outcome. Here, Dr Al Muderis is not, and could not be, an impartial independent expert. As the respondents submitted, this is his case, he has an obvious vested interest in its outcome. It is a case where he asserts his reputation was harmed. Regardless of how it came to be that the evidence was provided by reports, that he affirmed in reports that he considered himself to be impartially assisting the Court, reflects adversely on him. Instead of giving the evidence contained in the reports in affidavit form, as he would have been entitled to do. Rather, he chose to present himself as an expert witness in this case, it appears, to have his opinions carry greater weight. It does not on that account.

276 Indeed, the lack of partiality is patent on the face of the reports. The content in part is taken from his thesis, and he promotes his method of surgery over others. I agree with the respondents that at times the reports read as a submission. For example, he refers to one study he undertook, in the following way:

Its uniqueness lies in the experience I have gained from my extensive patient cohort, rendering it an unparalleled resource for comprehensive and informative insights into infection management and treatment outcomes.

277 That in closing submissions the applicant now accepts that as a party, Dr Al Muderis’ opinion cannot be treated as independent, and that this has some relevance to the Court’s assessment of the weight to be given to his opinion evidence, does not alter the fact he was prepared to ascribe to the Expert Code of Conduct, with what that entails.

278 Examples of the features of Dr Al Muderis’ evidence I have described above, are evident in the consideration of the respondents’ case below. At this stage, I provide three examples to illustrate.

279 First, his understanding of various terms. The respondents made submissions regarding Dr Al Muderis’ cross-examination on the terms of “clinics” and “representative” in relation to the evidence of his United States practice, as examples of his failure to make appropriate concessions. To that, the applicant submitted that several of the matters relied on by the respondents as demonstrating Dr Al Muderis’ lack of credit owe to the imprecise or vague way in which he was cross-examined. I do not accept the applicant’s submission.

280 On the meaning of “clinic” in particular, this was a topic that Dr Al Muderis was alert to, given he was aware that Dr Rosenblatt (his United States representative) had warned him that he should not refer to the patient meetings in the United States as “clinics”, as he was not licensed to practice medicine in the United States. To give just one example, in an email dated 14 May 2018, from Dr Rosenblatt to Ms Roberts, copying in Dr Al Muderis, he states:

Please do NOT call the gathering in New York a clinic. Munjed will get into trouble for holding a medical clinic without a medical license. That is a grave offence and could mean serious fines and also revoking of his visa.

281 This topic also arose in his interview with Mr Steinfort. This is evident in the complete transcript of the unedited 60 Minutes interview with Mr Steinfort. There, he had the following interaction, which did not ultimately make it into the final publication of the Broadcast:

Mr Steinfort: Have you ever performed medical consultations or procedures in the United States?

Dr Al Muderis: No. No.

Mr Steinfort: We we’re aware of discussions among your colleagues about the wording they needed to use about patient gatherings, advising their own staff, not to call them clinics because they didn't want you to get in trouble for breaching your visa.

Dr Al Muderis: Look, the FDA and the medical boards in the United States have certain regulations. We have to respect that we have to be abide by it. We do attend conferences. … I give lectures. I give advice and I give general talks to amputees. This is general knowledge, and that’s not dissimilar to all the clinicians that come from Germany, from Holland, from Sweden. And they do the same. We meet altogether. And by the same token surgeons coming from New York, if they go to California, they’re not allowed to see, to speak to patients or consult with patients because their medical board is different. So this applies to everybody. So we have to be careful when we give advice to patients and we can speak in general terms, we can give an educational advice, but you can’t do a particular consultation on a patient in the United States or any other country if you are not registered.

…

As I mentioned to you, we when we go to conferences, when we go to places where we see patient gatherings, I give lectures, I give educations and there will be people there. There will be patients there. And basically the forum is in an open forum in conference rooms. And we give general information to patients.

282 It was in that context that Dr Al Muderis was asked about the clinics in cross-examination. He insisted that he did not understand the term and that he did not know what the word “clinic” meant. He was slow to accept that he held “clinics” in Australia, at first saying “I don’t know what you mean by clinic”, before then describing these as an “osseointegration service”. He continued:

I don’t understand the definition of a clinic … I don’t understand what a clinic means … I don’t understand what’s wrong with calling anything a clinic … there are clinics in the United States. There are – I mean a clinic could be a place. A clinic could be a setting. Like, for example, there is a Mayo Clinic, which is a location.

283 I note that at one point, he accepted that he used the word “clinic”, and that it was his word, but purported not to understand what it meant. Then, after insisting that there had been a “gathering” rather than a “clinic” in the United States, he could not articulate a difference: “It’s – people – I don’t understand what a clinic means … As I said, there is a Cleveland clinic, there is the Mayo Clinic, and they are buildings”.

284 The respondents submitted that Dr Al Muderis denied what was obvious – that he sought to avoid the word “clinic” and instead used a word conveying a social rather than clinical interaction, because he knew that he was not entitled to provide medical services in the United States.

285 That Dr Al Muderis well understood the meaning of clinic was evident in his later evidence in cross-examination when asked about an email sent arranging a clinic in New Orleans. Dr Al Muderis gave evidence that Ms Roberts should not have described it as a clinic, because it is “not a clinic”. His evidence was that Ms Roberts’ use of the word “clinic” was wrong. It is difficult to accept that one can claim they have no understanding of a certain word, while also stating that its use in a particular context was incorrect.

286 Finally, as the respondents submitted, during his evidence, Dr Al Muderis referred to “clinics” run by the Red Cross in Cambodia and to patients attending a “clinic” in Australia but was evasive in his answers when asked about this word in the context of the United States (as noted above).

287 There did not appear to be any vagueness in the applicant’s cross-examination, and no genuine confusion on the part of the applicant. It was evident from the content of the evidence, and from seeing and hearing this cross-examination, that Dr Al Muderis was being evasive and disingenuous in his purported failure to understand the questions, or the meaning of certain words. The applicant’s submission as to the point that Dr Al Muderis was said to be making in cross-examination (that is the term “clinic” does not have a consistent meaning), ignores the context of the cross-examination. The nature of the clinics is evident in evidence discussed below. I accept the respondents’ submission that Dr Al Muderis’ evidence of a lack of understanding of the term was disingenuous. The applicant knew he was not authorised to provide medical services in the United States, and his concern about that was the basis for his answers.

288 The same observations can be made of Dr Al Muderis’ evidence of his understanding of the word “representative”. Dr Al Muderis gave evidence that Dr Rosenblatt was “not [his] American representative”. Later, when then asked to confirm that his evidence was that Dr Rosenblatt had not at any time been his representative in the United States, he responded: “No, I did not say that”. Dr Al Muderis then purported not to understand the meaning of the word “representative” when put to him in cross-examination: “I don’t – I don’t understand that word representative means”. He refused to accept the proposition that Dr Rosenblatt was his representative where it was plain (from documentary evidence) that he was. When Dr Al Muderis was shown an email from Ms Roberts in cross-examination which referred to Mr Hernandez and Dr Rosenblatt as his representatives, he initially agreed it was “correct” and that he had instructed Ms Roberts to send the correspondence in those terms. However, when pressed and reminded of his previous answers which appeared to be inconsistent with the email, he maintained he was not a representative: “He’s a colleague. He represent[s] osteointegration. He is – he represents his own practice. I mean, we’re playing with words here”. This response is not indicative of confusion on Dr Al Muderis’ part, but rather an attempt at evasion. Emails sent from Dr Al Muderis’ practice refer to Dr Rosenblatt and Mr Hernandez as “our representatives” and Ms Roberts accepted that to be the position.

289 Second, as the respondents submitted, Dr Al Muderis on occasions used a technique in cross-examination to avoid answering questions which included asserting at various times that he was “not a pain specialist”, “not a prosthetist”, “not a psychologist”, “not a radiologist”, “not a lawyer”, not a qualified person to understand a contract, “not a physician”, “not a pathologist”, and “not a statistician”. This was acutely illustrated in cross-examination about the terms of a contract with Mr Hernandez (discussed in Part 5, Section 6) where Dr Al Muderis said, on several occasions, he did not understand the contract, and that “I’m not a qualified person to put a contract or make a contract or understand the contract”. I do not accept that evidence or that Dr Al Muderis regarded himself in that position, but rather it was entirely disingenuous to suggest that he could not understand the contract, with the answers given to avoid admitting his understanding of its plain terms. As explained below, Dr Al Muderis’ evidence in cross-examination in relation to the contract was not just evasive, it was false.

290 Third, to provide an example of a different nature. As will be apparent when considering the case study in relation to Ms Mooney (a non-osseointegration patient), Dr Al Muderis gave an answer in cross-examination, conceding an issue which he had repeatedly denied: see Part 6, Section 8. A critical aspect in respect to Ms Mooney’s case was whether Dr Al Muderis observed a malalignment in her leg at the time of surgery. His case as deposed to in his affidavit and repeated in cross-examination was that at the time of surgery, there was no malalignment and because of swelling he could not tell if there was any malalignment. Despite that evidence, Dr Al Muderis ultimately conceded in cross-examination that he observed a deformity during Ms Mooney’s surgery:

… that could not be rectified at the time of that particular surgery, considering that the surgery took more than five hours, and the decision had to be made to conclude the surgery without compromising the patient leg.

291 That answer is inconsistent with the case he advanced. It is a topic on which there can be no misunderstanding.

292 Other examples of these features of Dr Al Muderis’ evidence discussed elsewhere include: evidence of his explanations when questioned on whether he had responded to messages from patients for help; his failure to accept the obvious meaning of messages sent to him by patients who were complaining about the position they were in (e.g. Ms Çalan and Mr Urquhart); and his failure to accept what was obvious in x-rays (e.g. Mr Mortimer).

Ms Claudia Roberts

293 Ms Roberts has been the Accounts Manager at the LRC since about July 2021. She also worked for Dr Al Muderis as the Clinical Coordinator and Rehabilitation Manager at his practice, Norwest Advanced Orthopaedics, from July 2017 to October 2020 before going on maternity leave. She is a physiotherapist by training. She is the applicant’s life partner.

294 Ms Roberts was cross-examined over a period of a day and a half. It appeared at times that Ms Roberts had a prepared statement to make on some topics. Her answers sounded prepared and at times were not responsive to the questions being asked but rather were defensive of the actions taken by her or the applicant. It was apparent that in relation to some topics, she was acutely aware of what not to say. It was also plain that Ms Roberts was aware of how she was to respond to certain lines of questioning, even in the face of clear contemporaneous evidence (including from her) to the contrary.

295 To take as an example her evidence about the “clinics” conducted in the United States (also referred to above in considering Dr Al Muderis’ evidence). On Dr Al Muderis’ trips to the United States, Ms Roberts organised the “clinics” for him to see existing and prospective patients and often travelled with him to do so. An email in evidence from Ms Roberts sent to 96 existing or prospective patients in the United States, dated 9 May 2018, states:

Hello again from Claudia in Sydney!

I am delighted to [tell] you that Munjed will be running an Osseointegration clinic in New York on 9th of June and has allocated time to meet and examine you in person. We will have some of our older patients attending who have already had Osseointegration who you will be able to talk to as well and find out more information first-hand. In our experience after nearly 500 cases, this type of clinic is the most valuable.

If you can meet him in New York please let me know, alternatively we will be in Tucson around 12-14th of July if this would suit you better.

Please let me know.

(emphasis in original)

296 On 6 June 2018, Ms Roberts sent a follow up email to the recipients with details of the “OI clinic”, requesting they bring recent x-rays with them. I note that in both emails, Ms Roberts’ title in her email signature is “Clinical Coordinator and Rehabilitation Manager”.

297 Those emails and her evidence makes clear that Ms Roberts, at the direction of Dr Al Muderis, had organised a clinic in New York with the objective of Dr Al Muderis reviewing patients including a physical examination and an examination of their x-rays, to advise whether or not they were suitable for osseointegration surgery. In relation to the arrangements for that clinic in New York, an email from Ms Roberts liaising with Mr Hernandez, explains that she had spoken to Dr Al Muderis and the suggestion was to book an additional hotel room where “Munjed said the patients can be met in the foyer and be brought up to the hotel room for a consultation”: see e.g. Mr Wynne and Ms Schaeffer patient case studies in Part 6, Section 4, whose evidence is consistent with that (relating to other occasions).

298 Ms Roberts, in cross-examination, gave evidence that before these trips, including to New York, she would email patients (both who had osseointegration or were interested in it) to inform them that Dr Al Muderis was travelling to the United States, and to offer them a timeslot to see him. Ms Roberts was shown in cross-examination the email extracted above. She accepted that the purpose of those meetings was to meet and examine patients in person, as well as to conduct follow-up assessments. She also accepted that one of her jobs during those meetings was to display on her laptop things like x-rays of the patients’ hips and legs to give to Dr Al Muderis. She gave evidence that shortly after those meetings, upon returning to Sydney, she would provide patients who had met with Dr Al Muderis, information about booking osseointegration surgery (including fee estimates).

299 Despite this evidence, Ms Roberts claimed in cross-examination that there was a distinction between consultation and meeting, contending that what was organised was the latter:

Well, I would like to explain that a consultation – when a patient comes to a clinic, they come to see a medical practitioner with the view of getting an assessment. So the medical practitioner will make a judgment on their current situation and either seek advice or treatment, and none of which Munjed did in America. He did examine patients, meaning inquire into, to gather information, to give education, but it was only once Professor Al Muderis was back in Australia he would then make the – the assessment.

300 Ms Roberts then denied knowing, or having been told, that it was an offence to provide medical services in the United States without a licence, and that it would be a grave offence for Dr Al Muderis to do so. However, after having been shown the email from Dr Rosenblatt (referred to above at [280]), she accepted that this was the case. Ms Roberts eventually conceded that she had been told it was unethical and illegal for Dr Al Muderis to provide any form of medical service to patients in the United States.

301 Ms Roberts said in cross-examination that she stopped calling it a “clinic” because she was told she used the wrong term. In cross-examination, she initially referred to them as meetings (and accepted use of the word “gathering”). However, over time Ms Roberts did not maintain this pretence in the face of the evidence, and then reluctantly accepted the obvious, that what was being organised was a clinic and consultations.

302 Internal emails sent within Dr Al Muderis’ team in the lead up to the organised events supports those descriptions. She also accepted that she intended to promote the clinics or consultations on social media, but had been told not to, so that regulators did not find out that Dr Al Muderis was seeing patients in circumstances where he had no entitlement to do so. Ms Roberts accepted that she and Dr Al Muderis agreed not to do so, because she appreciated from what Mr Hernandez had said to her in an email dated 15 May 2018, that widely promoting it on social media would bring it to the attention of the wrong people, that is, the regulators.

303 The language initially used by Ms Roberts in cross-examination in relation to the consultations (e.g. as a “meeting”) was carefully chosen to avoid any suggestion of advice being given, because she was acutely aware that it was illegal for Dr Al Muderis to provide medical advice, as he was not licenced to do so. Her answers on this topic were deliberate, and prepared. Her evidence is inconsistent with the evidence of patients discussed below who attended these clinics, and documentary evidence including emails sent by her for that purpose: see Part 6, Section 4.

304 The clinic was organised, patients were advised in advance, an appointment time was provided to the patient to meet Dr Al Muderis and for him to examine them (e.g. by considering their x-rays in the process), advice was given, and patients then acted on that advice. Although Dr Al Muderis denied examining patients, he ultimately said:

I did look at the patient, I looked at the X-rays, I did hear their stories, and I did tell them that they may be suitable for [osseointegration] surgery pending the consult.

I do not accept that such meetings were merely a patient gathering, to “give education”. I do not accept Ms Roberts’ evidence on that topic (noting her evidence changed during cross-examination). Calling it a meeting or gathering, as Ms Roberts (and Dr Al Muderis) repeatedly attempted to do, does not alter what occurred. They did so because describing it as a clinic brings with it certain connotations. The description of “clinic” was used in correspondence by Ms Roberts because that is what she organised. Referring to it as a clinic in the circumstances creates an expectation among the patients as to what would occur when they attended, which was no doubt reinforced by the patients being asked to bring their x-rays and being told they would be examined. What occurred on the patients’ evidence was a consultation, examination and assessment, albeit brief. That there were obvious deficiencies (e.g. no notes were taken, patients were not advised of the risks and complications) does not alter that. On the strength of what Dr Al Muderis advised the patient as to their suitability, many of them made the decision to undergo the surgery. For all intents and purposes, and as a matter of common sense, such meetings operated as a clinic: see Part 6, Section 4 on the international patients.

Expert witnesses

305 The applicant relied on expert reports of Dr Tetsworth and Dr Stoita. He also relied on an expert report from Dr Rozbruch (from the United States) which was tendered, with him not being required for cross-examination.

306 The applicant also called doctors (and prosthetists) who are involved in his practice (or with whom he works closely) to give evidence, inter alia, of what is said to be his standard practice. Some of these witnesses are discussed below under the heading “other witnesses”.

Dr Kevin Tetsworth

307 There were three affidavits of Dr Tetsworth read as evidence, and four expert reports tendered.

308 Dr Tetsworth is an orthopaedic surgeon, specialising in limb reconstruction surgery and osseointegration. He has been clinically active in orthopaedics for over 35 years. He is a consultant staff surgeon in the Orthopaedic Trauma and Limb Reconstruction department at the Royal Brisbane and Women’s Hospital (RBWH) but also travels to Sydney every two weeks to see patients and perform surgeries at Dr Al Muderis’ clinic at Macquarie University Hospital. He has worked with Dr Al Muderis since 2015. He has held several positions as a professor at the University of Queensland. He has published extensively in his area.

309 Dr Tetsworth did not disclose in any of his affidavits or expert reports that he is a director alongside Dr Al Muderis of several companies, including the Limb Reconstruction Centre Pty Ltd, the Academy of Musculoskeletal Reconstruction and Osseointegration Surgery Pty Ltd, and PedCAT Imaging Pty Ltd. He accepted in cross-examination that he is also a shareholder in these companies.

310 In addition, Dr Tetsworth considers himself to be a long-standing friend of Dr Al Muderis. There is a text message exchange that occurred between Dr Tetsworth and Dr Al Muderis shortly after the airing of the Broadcast and the publication of the Articles. For example, in those messages, Dr Tetsworth offered his support by asking Dr Al Muderis to “let [him] know what if anything [he] can do” and stating, “Always got your back – just let me know”. Both of them also referred to the other as their “mentor”.

311 In that context, Dr Tetsworth provided three reports relating to three different patients in these proceedings. One of those patients, Mrs Gollan, is a patient he had seen in a clinical context and had operated on. In his affidavits, he refers to his involvement with four patients who gave evidence. However, it appears Dr Tetsworth may have also been clinically involved with Dr Al Muderis in relation to a further 11 patients called by the respondents. To put it another way, Dr Tetsworth appears to have had active involvement with these patients, who have now given evidence in these proceedings of issues they have experienced. These matters were not disclosed by Dr Tetsworth in any of his affidavits or reports. The expert report in relation to Mrs Gollan does not refer to his clinical involvement with her.

312 Dr Tetsworth has ascribed to the Expert Code of Conduct which, inter alia, refers to an expert being impartial in the expression of their opinion. It is readily apparent that the matters referred to above are all relevant to the question of the independence or impartiality of Dr Tetsworth. His answers in cross-examination on this topic were unsatisfactory.

313 For example, in relation to his business associations with Dr Al Muderis, he said the information was of “such limited consequence and importance to the proceedings that [he] did not find them relevant”. As to the text messages relating to his offer to testify in support of Dr Al Muderis, when asked what the difference was between that and giving an expert opinion, he said:

I’m generally supportive of Munjed and able to testify as to the quality of his care and the passion that he brings to the care of his patients and the dedication and the time and effort he puts into it, and the other is expert opinion as to the nature and quality and benefit to patients for – of osseointegration itself.

He considered these matters that had not been disclosed “immaterial” to the Court’s ability to assess his independence and integrity. When subsequently asked about whether he therefore considered the Court’s knowledge that he “said to Dr Al Muderis … [he] would testify in support and do whatever it takes” to be immaterial in its assessment of his independence and integrity, he replied: “I think it’s – it’s evidence that I was able to successfully differentiate between the two – the personal relationship and the expert opinion”. It is difficult to understand how, as Dr Tetsworth said, it was evidence that he was able to “differentiate”. It is not an answer to the question. As to the fact he had seen one of the patients about whom he later purported to give an impartial expert report, his failure to refer to his previous contact with her was said to be because he was only asked to address specific questions.

314 Dr Tetsworth has a strong view about Dr Al Muderis’ ability as a doctor, the manner he treated his patients, the quality of his care and the passion he brings to that. He denied that his knowledge and respect for Dr Al Muderis would have influenced his ability to be an expert witness. However, I note Dr Tetsworth approached his expert reports on the assumption that Dr Al Muderis would not have been negligent, and that in his opinion he is a responsible surgeon (as clear from his evidence about Ms Mooney).

315 Dr Tetsworth’s failure to recognise the potential significance that the matters referred to above may have had on his independence as an expert, or that it is for the Court to decide whether that is so, also impacts the assessment of his evidence.

316 Dr Tetsworth presented as a witness confident in the correctness of everything he said and gave the strong impression that what he viewed could not be questioned. That is evident, for example, in his responses in cross-examination on his relationship with Dr Al Muderis (as noted above), with the effect of Dr Tetsworth’s evidence being that these are immaterial considerations because he has told the Court he complied with the Expert Code of Conduct. Dr Tetsworth’s failure to grasp the potential significance of this is troubling.

317 I refer to two further examples relevant to considering Dr Tetsworth’s independence in giving evidence.

318 First, he wrote a report written in support of an application for Mr Ford as part of his workers compensation claim to receive funds to undergo osseointegration surgery (Mr Ford’s case study is addressed below in Part 6, Section 3). The report expressed the view that Mr Ford was a suitable candidate for osseointegration, as did a separate letter by Dr Al Muderis. The terms of the report make plain it was written to support the opinion of Dr Al Muderis. Leaving the merit of any opinion expressed aside, Dr Tetsworth’s report criticised the experience of other doctors who had expressed views to the contrary. He was prepared to make such comments when holding himself out as an expert in circumstances where he said in the report that he had not read their reports, rather emphasising to the reader that he was far more qualified to express an opinion, and that Dr Al Muderis is one of the global leaders in the field. This was the basis for his view that Dr Al Muderis’ report should be accepted. His preparedness to express his opinion in that way, and willingness to do so without even considering what other doctors opined, reflects adversely on him.

319 Second, Dr Tetsworth gave evidence in these proceedings in circumstances where his conduct in relation to Mr Urquhart, a patient referred to in the Publications, is the subject of a complaint by the patient. Namely, that Dr Tetsworth suggested to Mr Urquhart during a consultation that he spray Febreze, a carpet deodoriser, on his stump to deal with the odour emanating from his stoma that he had been complaining about (see Part 6, Section 7). Dr Tetsworth in cross-examination expressed the view that “Febreze is the single most effective odour fighting agent available”. He said he has discussed this with patients many times. However, he accepted that he had not sought to investigate the use of Febreze in a clinical setting, including whether it is appropriate for such use. He does not know if it is clinically approved for such use. Rather, on his evidence, the extent of his knowledge on Febreze is from reading its Wikipedia entry on one occasion. I accept the respondents’ submission that this reflects poorly on his practice.

320 The applicant in closing submissions accepted Dr Tetsworth has a professional relationship with Dr Al Muderis, and that this must bear on the Court’s assessment of the weight to be given to his opinion evidence. The applicant nonetheless submitted that:

[r]egardless of Dr Al Muderis’ interest as a party and Dr Tetsworth’s relationship with him, the difference between them and the respondents’ experts in expertise on osseointegration – as measured by both clinical experience and academic research – and in the quality of their reports is so large that the Court would accord their opinions on disputed issues in relation to osseointegration substantially more weight than that of the respondents’ experts.

321 I note that out of the three patients on which Dr Tetsworth gave an expert opinion, being Mrs Gollan, Ms Mooney and Mr Mortimer, only the latter is an osseointegration patient. That said, he did give evidence in relation to other osseointegration patients he was clinically involved with.

322 The applicant’s submissions directed to the matters of non-disclosure by Dr Tetsworth were limited. The description in the submission above about him having a “professional relationship” with Dr Al Muderis understates the matters relied upon by the respondents noted above, which include, inter alia, the business relationship and the nature of the text messages.

Dr Razvan Stoita

323 There were three affidavits of Dr Stoita read as evidence, and six expert reports tendered.

324 I note that Dr Stoita’s affidavit refers to him having had clinical involvement with three patients (or prospective patients) involved in these proceedings. However, it appears from the evidence that he may have had some clinical involvement with a further four patients involved in the proceedings.

325 Dr Stoita has worked with Dr Al Muderis at the clinic since about 2016 or 2017 (and says he has known the applicant for around six years). He is partners with Dr Al Muderis, being a director and shareholder of Limb Reconstruction Centre Pty Ltd. He therefore has a financial interest in the success of the LRC. In addition to that, Dr Stoita and Dr Al Muderis are common shareholders in the new hospital that has been built at Macquarie University Hospital with other doctors, Medibank and the hospital itself. They are also partners in radiology equipment they purchased to provide services to patients, as Macquarie University Hospital lacked the funds to provide that equipment.

326 He regards himself as a friend, colleague and supporter of Dr Al Muderis. He holds the view that Dr Al Muderis is a good surgeon, noting he “otherwise wouldn’t be in practice with him if he wasn’t”. He encouraged Dr Al Muderis to sue for defamation and believes the reporting is unfair. This is reflected in text messages exchanged between them at the time of the Publications, which also reflect the support Dr Stoita was providing – and intended to continue providing – to the applicant in the future. A text exchange included Dr Stoita texting “you’ve got all of us ready to go in to bat for you. Just let us know” and Dr Al Muderis texting to him at a later date, “we need to be solid on this”. His affidavit evidence in respect of the applicant’s reputation refers to him as “one of the most skilled surgeons [he has] ever met and … treats every patient with the utmost care and regard for their health”. His position is clear regarding his view of the applicant. He gave evidence that most of his discussions with the applicant about the case have been to offer support (although he also said Dr Al Muderis mentioned to him about being asked questions in cross-examination about an overseas patient).

327 The expert reports provided by Dr Stoita do not disclose any of the financial matters connected to the applicant. His failure to disclose such matters reflects adversely on him, in a context where he asserts in the reports, by ascribing to the Expert Code of Conduct, that he is an independent and impartial expert. Dr Stoita appears to regard himself as capable of giving independent evidence on the basis that all his reports “are backed by the literature” and have “nothing to do with … Dr Al Muderis”. That statement is rather disingenuous given the evidence related to Dr Al Muderis’ practice as a surgeon. I note for example, that Dr Stoita accepted in cross-examination that his evidence on a particular topic (in relation to Mr Marlborough) was based on an assumption as to what Dr Al Muderis did, rather than on what was recorded in the consultation report. Dr Stoita also accepted that he had discussed Ms Heffernan’s case with Dr Al Muderis (being one of the patients he provided an expert report on), although he said he could not recall whether the discussion took place before or after he had completed his report. When asked whether he should have disclosed the discussion in the report if it occurred beforehand, Dr Stoita said: “Possibly. Now, I don’t really – I’ve still made the report based on the evidence that was presented in the notes … [s]o not from the discussion that I had with Dr Al Muderis”. Regardless of Dr Stoita’s view, he still discussed the patient with the applicant in a context where he was going to give expert evidence on her. Dr Stoita accepted that some of the financial matters may be relevant in addressing the strength of his evidence but not the reliability. Dr Stoita’s lack of appreciation of the potential significance of these matters to the assessment of any opinion he expresses is troubling.

328 I note that the applicant did not address the evidence of Dr Stoita, as an expert in these proceedings, in his closing submissions (i.e. he referred only to himself, Dr Tetsworth and Dr Rozbruch as experts in osseointegration). As such, the applicant did not make any submissions in respect of the issues, including Dr Stoita’s non-disclosure, that arise in his evidence.

Dr S. Robert Rozbruch

329 Dr Rozbruch is an orthopaedic surgeon from New York and has practiced for 28 years with experience in trauma and amputation surgery. He is the chief of the Limb Lengthening and Complex Reconstruction Service, and the director and founder of the Osseointegration Limb Replacement Centre at Hospital for Special Surgery in New York. He first became engaged in osseointegration in 2015 and has since performed about 150 osseointegration surgeries.

330 Although the respondents noted his close relationship with Dr Al Muderis, they did not require him for cross-examination. I note a couple of the publications referred to in the curriculum vitae attached to his expert report are co-authored with Dr Al Muderis (one of these being in 2020 and also has Dr Tetsworth as a co-author).

331 Dr Rozbruch’s report does not address specific patients but rather expresses opinions in his answers to questions posed relating to osseointegration generally (some of which respond to statements from the respondents’ witnesses’ expert reports). The respondents did not challenge that the opinions expressed in his report are genuinely held. The respondents submitted that some of his views are at odds with those expressed by Dr Al Muderis, giving two examples. First, Dr Rozbruch opines that in relation to infection sometimes the diagnosis can “be made with simply observation”. Second, in relation to the use of a plastic surgeon for osseointegration, Dr Rozbruch uses one at his discretion, where he explained that the soft tissue contouring, stoma creation and nerve reconstruction require a surgeon skilled in that area, which may be an orthopaedic and/or a plastic surgeon. I proceed on the basis Dr Rozbruch genuinely held the views he expressed in his report.

Other witnesses

Dr Tim O’Carrigan

332 Dr O’Carrigan is an orthopaedic surgeon and a current member of Dr Al Muderis’ team at the LRC, having started in around April 2018. He has known the applicant since this time and is one of four orthopaedic surgeons who were part of the development of the LRC (along with the applicant, Dr Tetsworth and Dr Stoita). He gave evidence that he would usually attend the LRC on a weekly basis, on Wednesdays to operate, and on Thursdays to consult (but every second week he would see his own patients, not connected to the applicant). His affidavit evidence on Dr Al Muderis’ reputation makes it clear he has a positive view of the applicant. For example, his affidavit refers to the applicant having a reputation of being, inter alia, a “competent surgeon”, “trustworthy, wanting the best for his patients” and “an innovator”.

333 At times, Dr O’Carrigan gave evidence in a very defensive manner. Although he accepted certain propositions in cross-examination as to the conduct of Dr Al Muderis or that expected of a surgeon, at times, he was reluctant to do so. On occasions he attempted to avoid answering questions in relation to conduct he perceived would ultimately reflect badly on the applicant, only to eventually, and sometimes begrudgingly, do so. This relates to propositions accepted by other medical witnesses regarding the proper conduct of a surgeon as to the care of a patient (or prospective patient) who undergoes osseointegration surgery. Dr O’Carrigan also said in response to some questions, that he did not know, or was not aware of aspects of Dr Al Muderis’ practice, or certain issues that were said to have arisen in respect of patients. Given his role and involvement at the clinic for several years, this is difficult to accept in all instances.

Dr Mustafa Alttahir

334 Dr Alttahir is an orthopaedic surgeon who is part of Dr Al Muderis’ team at the LRC. He first met Dr Al Muderis in 2009. Dr Alttahir commenced working with the applicant during his fellowship at Macquarie University Hospital between August 2019 and January 2020. He then returned to become part of the LRC in 2020. Dr Alttahir regards himself as “good friends [with the applicant] outside work”. He gave evidence Dr Al Muderis had a reputation for having “an impressive work ethic, being a leader, and being innovative and brilliant as a surgeon”.

335 At times he gave evidence in cross-examination in a defensive manner, as well as volunteering explanations or justifying his position rather than answering the question. He was reluctant to accept propositions put to him which were accepted by other witnesses (including those in his team at the clinic). He appeared conscious of the consequences of an answer to the applicant’s case. He also referred to a matter from the applicant’s opening, reflecting he was aware of at least part of the case presented and was acting accordingly. He did not present as impartial, but rather as a witness who had an interest in the outcome of the case.

Dr Abdul Haidary

336 Dr Haidary is a rehabilitation specialist at Sydney Adventist Hospital, The Hills Private Hospital (The Hills) and the LRC at Macquarie University Hospital. He started working as a rehabilitation consultant for Dr Al Muderis in around 2015, and since then has looked after Dr Al Muderis’ patients in the provision of pre-operative care and rehabilitation.

337 His evidence on Dr Al Muderis’ reputation makes it clear Dr Haidary has a positive view of him. In his affidavit, he refers to Dr Al Muderis being a “highly skilled surgeon and an innovator”, where he “cannot recall having ever heard a complaint about [his] conduct or his patient’s outcomes”.

338 Dr Haidary gave evidence confidently, at times defensive, and was dismissive of any suggestions put to him contrary to his evidence. From the outset, when answering questions (including in examination-in-chief), Dr Haidary did not do so, but rather volunteered statements he perceived to be advantageous to the applicant’s case. His evidence, on occasions, was also not based on what he recalled from being present at a consultation, but what he expected to be the case. For example, in relation to Mr Smith, Dr Haidary was prepared to say in his affidavit evidence that it was a “ridiculous” suggestion by Mr Smith to say he was not informed of the rehabilitation process, asserting it was explained to every patient. Yet he gave evidence in cross-examination that he does not recall being present at the pre-operative consultation (noting there was no consultation report produced). It is not an answer for Dr Haidary to say he knows the process from having been “to all of the clinic[s]”, meaning “it’s impossible somebody will not” have the rehabilitation process explained to them. I note that despite Dr Haidary’s description as to the pre-operative process, he is not listed in any of the initial pre-operative consultation reports in evidence as having been present (and most reports did not record any rehabilitation consultant as present). On the other hand, he also omitted to refer in his affidavit to the fact that the nursing notes of Mr Smith at The Hills reflected that Mr Smith had notified the nurse that his stump was bleeding when he was sitting down on the toilet, identifying “+++” as to the quantity of blood. This is consistent with Mr Smith’s evidence. Dr Haidary’s explanation for omitting this incident in his evidence varied and was unsatisfactory (including that it was hard to tell how much of the blood referred to was Mr Smith’s “imagination” or ooze).

Dr Karan Doshi

339 Dr Doshi is an orthopaedic surgeon, qualified in India. He worked with Dr Al Muderis as his fellow and under his supervision from April 2019 to January 2023 at East Sydney Private Hospital, Macquarie Hospital and Norwest Private Hospital. During that period, he gave evidence he worked with Dr Al Muderis daily. He considered his job with Dr Al Muderis to be “fantastic”.

340 Dr Doshi appeared more willing to make appropriate concessions than other doctors referred to above. He typically accepted propositions put to him in cross-examination about the conduct expected of a surgeon. However, when he was asked questions directed to Dr Al Muderis’ conduct or his practice, in many cases, he either did not recall, or was unaware of certain practices or patients.

Mr Stefan Laux

341 Mr Laux is a clinical prosthetist and manager at APC Prosthetics in Sydney. He first started working with Dr Al Muderis in 2011.

342 Mr Laux was generally an honest witness but appeared to be conscious of saying anything which might be seen as critical of Dr Al Muderis. He appeared to be very uncomfortable giving evidence and was hesitant at times.

343 I note that Mr Laux gave evidence that he has referred patients or prospective patients who were interested in osseointegration to other doctors, including Dr Huang, whom he held in high regard. In relation to Mr Urquhart, Mr Laux also said that when Mr Urquhart mentioned his troubles to him regarding his implant and wanting a second opinion, Mr Laux recommended Dr Huang (amongst a couple other surgeons).

344 After the completion of the evidence in the hearing, the applicant attempted to tender a statement apparently signed by Mr Laux dated 29 August 2022 (shortly before the Publications) about his interactions with Ms Grieve as at that date. The argument about admissibility occurred on 23 May 2024, at which time, I did not admit the document but gave the applicant leave to put on further submissions. He did so in his closing submissions, contending that the document is admissible under s 64(3) of the Evidence Act, and that the applicant could not have tendered it before the conclusion of the examination-in-chief of Mr Laux because of s 64(4).

345 That submission is misconceived. Mr Laux gave evidence for the applicant. The applicant was aware of this document and what he says is the status of Mr Laux before he gave evidence. The applicant asserts that he is one of the confidential sources. The applicant could have, but did not, lead evidence from Mr Laux of any of his dealings with Ms Grieve. The document (and any dealings with Ms Grieve) was not referred to in his affidavit, nor was it sought to be lead orally. That was a choice the applicant made. Section 64(4) did not prevent that from occurring. This is also in a context where prior to the commencement of the hearing, the applicant had been attempting, through various applications, to obtain information about the identity of confidential sources. In that context, the applicant cannot, at the end of the hearing, seek to tender a document containing a previous representation of a witness who gave evidence in the proceedings (for the truth of the content) on a topic they say is of relevance, but chose not to lead in his case. The applicant ignores the premise of s 64, which is that the person who made the previous representation is available to give evidence about that representation. The obvious reason for s 64(4), that the representation must not be tendered before the end of examination-in-chief without leave of the Court, is that the witness would no doubt give evidence about, or authenticate, the document before it is tendered. Leave was not sought by the applicant to tender it. The further submissions do not alter my view that the document is not admitted.

346 I note, despite the applicant’s assertion, Mr Laux did not identify he was a confidential source. He has never released Ms Grieve from the promise of confidentiality.

Section 6 — The respondents’ witnesses

347 Before addressing the case studies, it is appropriate to refer to the expert witnesses called by the respondents. An assessment of the principal witnesses is addressed below, with others referred to in the patient case study in relation to which they gave evidence. It is also appropriate to consider the evidence of witnesses who worked with Dr Al Muderis, being Ms Stewart, Mr Grant and Mr Hernandez. The evidence of some patients (addressed later in these reasons) is relevant to the assessment of these witnesses, and it is important to bear that in mind when considering their evidence.

Expert witnesses

Dr Stephen Ruff

348 Dr Ruff is an orthopaedic surgeon and has been a staff member of the Royal North Shore Hospital (RNSH) and Dubbo Hospital for 40 years and 25 years, respectively. He was a member of the Court of Examiners for the Royal Australasian College of Surgeons for eight years. He is also the recipient of three awards from the Royal Australasian College of Surgeons including the NSW State Branch Merit Award (2006), the award for Outstanding Service to the Fellowship (2009) and the award for Outstanding Services to Surgery (2014). Over the years, he has been a member or chairman of various medical committees. His interests are trauma, spine, hip and knee surgery, and he has performed thousands of hip and knee arthroplasties.

349 There was one affidavit of Dr Ruff read as evidence, and two expert reports tendered. His evidence largely relates to non-osseointegration patients, or a surgeon’s conduct generally. Despite not having experience in performing osseointegration, I accept that Dr Ruff also has some knowledge of the procedure (noting he did the Brånemark’s course at San Francisco General Hospital). He was an impressive witness, who gave evidence carefully, in a considered manner, and was trying to assist the Court. He was an honest and reliable witness. He made appropriate concessions. He explained his opinions clearly and provided the foundation for them. His evidence was measured.

350 The applicant accepted that Dr Ruff was impressive and forthright in his oral evidence and had clearly attended to assist the Court. However, in relation to Ms Mooney, he submitted that Dr Ruff’s written report was in many respects unfairly critical of Dr Al Muderis. I address this submission below. Suffice to say at this stage, that I do not accept that submission in relation to his evidence concerning Ms Mooney.

Dr Michael Leung

351 Dr Leung has more than 35 years of experience as a plastic surgeon. He was employed at The Alfred Hospital (The Alfred) as a plastic surgeon from 1989 to 2017 and was the Director of the Plastic Surgery Unit at Alfred Health from 2002 to 2016. In 2009, he was appointed as an Associate Professor at Monash University.

352 In his report, Dr Leung identifies his qualifications, noting that Alfred Health runs a major Trauma Centre in Victoria, and the Plastic Surgery Unit runs an osseointegration unit involving craniofacial osseointegration, hand osseointegration, and upper and lower limb osseointegration. In those circumstances, he says he has experience in dealing with major trauma, including major limb amputations, as well as referrals regarding chronic stump problems in amputees. His report also details his education and post-graduate training. He has received direct teaching from Professor Per-Ingvar Brånemark regarding the techniques of osseointegration and craniofacial osseointegration. Dr Leung is a Member of the Order of Australia for significant service to medicine and the international community.

353 Similar to Dr Anstee (as discussed below), the applicant submitted Dr Leung had limited experience in osseointegration and his evidence was of limited relevance.

354 As Dr Leung’s evidence in cross-examination progressed, it became more apparent that he is obviously qualified to express opinions on the topics he has. The tenor of his cross-examination was at times belittling if he did not accept the propositions put to him. His honesty was questioned by the applicant. I accept he was an honest witness. I accept that Dr Leung is qualified to give the opinions he did about osseointegration surgery.

Dr Paul Stalley

355 Dr Stalley is an orthopaedic surgeon with over 39 years of experience, practicing at the Royal Prince Alfred Hospital. He is a Member of the Order of Australia for “significant service to medicine, particularly the treatment of bone and soft tissue cancers”. He has served as the Program Director of Surgery of Sydney Local Health District and either chaired or served on multiple government committees. He has held multiple administrative and clinical leadership roles. He has published many medical and academic papers and regularly presented at conferences. He is also a Clinical Associate Professor. There were four expert reports of Dr Stalley tendered in these proceedings. His reports discussed osseointegration generally, as well as a large number of the patient case studies.

356 As the respondents submitted, in his first report, he described his relevant experience including in relation to amputations and the management of large-embedded prostheses. In cross-examination, he explained that although osseointegration was not a procedure he performed, it was a simple one well within his skill set. His evidence was that he “declined to carry out those procedures because [he] feel[s] that there are vastly better options available”, and that osseointegration itself is a “very simple, straightforward operation, which [he] would leave to a fellow to do”.

357 Pausing there. The applicant criticised that evidence of Dr Stalley as “an arrogant and ignorant response which speaks poorly of his credibility”. He submitted that it demonstrates Dr Stalley approached this matter “with the preconception that osseointegration itself is a procedure which should not be caried out”. However, Dr Ruff also explained that the actual orthopaedic component of osseointegration “is terribly simple; it’s not much different from putting a cement-free component down a–a hip replacement, intramedullary nailing a femur”. He said it is the soft-tissue component “where it rises and falls” on the stoma that causes difficulties. Dr Anstee described it as follows:

The postoperative-care needs of osseointegration patients are high; it’s a complex system; troubles occur; there’s all sorts of rehabilitation needed. Just the osseointegration itself is a small part of the deal.

358 Dr Doshi, called by the applicant, also opined that the surgery itself is not complex, it is the management of potential complications that is complicated. Given that evidence, the applicant’s submission cannot be sustained. Besides, the import of Dr Stalley’s evidence was not a generalised opinion of osseointegration, but rather an explanation as to why he personally had not carried out the procedure before.

359 Dr Stalley proactively disclosed material in relation to his previous dealings with Dr Al Muderis in his report. It was appropriate to do so.

360 The applicant’s submissions were rather scathing of Dr Stalley, alleging he was dishonest in his evidence. He also submitted that Dr Stalley was “wholly unimpressive as an expert witness”, and that no weight should be placed on his opinions. He submitted that “he has no expertise at all in relation to osseointegration and is unqualified to opine on it”. It was submitted Dr Stalley’s opinion should therefore be treated as irrelevant and be disregarded when he purports to opine on osseointegration issues.

361 I do not accept that Dr Stalley was dishonest, or that he was an unimpressive witness. His evidence was clear and he explained the bases of his opinions (which covered many topics). Dr Stalley was put in a difficult position given the number of patients he was asked to give expert evidence about. The questions in cross-examination were rather acrimonious at times.

362 As the respondents pointed out, Dr Stalley was not wholly critical of Dr Al Muderis. For example, he volunteered that Dr Al Muderis “was a good clinical, dexterous surgeon”:

Ms Chrysanthou: You have never in relation to any of these patients, have you, criticised my client’s surgical skills?

Dr Stalley: No. His decision-making, soundly. Surgical skills, no.

363 I accept Dr Stalley may not view Dr Al Muderis in high regard. In disclosing his previous dealings with Dr Al Muderis, Dr Stalley also referred to there being:

several events which were unimpressive to me in terms of patient management and l was significantly unimpressed by his performance on an ethical basis and also on a personal basis.

364 Notwithstanding that, his evidence was reasoned and forthright.

365 The applicant was dismissive of Dr Stalley, and when asked about an opinion he expressed, Dr Al Muderis responded:

Dr Stalley had never done a single osseointegration surgery, so he doesn’t, to my knowledge, know anything about osseointegration surgery, what it involves. So it’s – it’s very arbitrary to make such a comment about surgery that he’s not familiar with.

366 That is more than disagreeing with the opinion expressed, but a criticism of the witness for expressing it. It was gratuitous.

367 Even if Dr Stalley has not performed the osseointegration procedure before, I do not agree with the applicant’s submission that he is not qualified to opine in relation to it given his experience. What weight is to be given to any opinion expressed will depend on the issue being considered.

Dr John Anstee

368 Dr Anstee is a plastic and reconstruction surgeon, who has served as a Senior Plastic Surgeon at The Alfred since 1987. Since 1990, he has been a part of the osseointegration unit at The Alfred. He has been involved in performing approximately 50 osseointegration surgeries. He is still part of The Alfred’s osseointegration services but stopped operating in about 2013. The Alfred is both the biggest trauma centre and the only adult burns unit in Victoria. Dr Anstee had previously observed and consulted some of Dr Al Muderis’ patients, including having had a consultation with Ms Todd.

369 He is one of Ms Grieve’s sources and appears in the Broadcast. He is also mentioned in each of the other Publications. Dr Anstee appropriately disclosed his involvement with Ms Grieve and 60 Minutes. He was forthright in his evidence on this topic.

370 The applicant submitted that as Dr Anstee is a plastic surgeon and not an orthopaedic surgeon, he is only qualified to opine on the management of soft tissue. I disagree. The evidence of Dr Anstee’s qualifications and experience renders him qualified to opine on osseointegration. In cross-examination, he explained how his plastic surgery training relates to the performance of osseointegration surgery. He was previously the leader of the osseointegration team at The Alfred (a role he was succeeded in by Dr Leung). As such, during that time, the ultimate decision as to who would receive osseointegration at that institution lay with him. I note that some topics on which Dr Anstee gave evidence were not confined to osseointegration but also addressed broader issues of surgical practice.

371 Dr Anstee gave evidence in a manner which displayed his expertise, and he clearly explained the bases for his evidence. He made appropriate concessions in doing so.

372 I note that the applicant’s submission with respect to Dr Anstee and Dr Leung, that they are not qualified to opine on osseointegration because they are plastic surgeons, is somewhat consistent with aspects of Dr Al Muderis’ evidence during the hearing discussed below in relation to his multidisciplinary approach (see Part 6, Section 1). That is, persons who are not orthopaedic surgeons cannot opine on whether a patient is suitable for surgery (which Dr Al Muderis has said is an orthopaedic decision).

373 That said, I note that the applicant accepted that Dr Anstee and Dr Leung both had experience with osseointegration but submitted that the extent of their experience was limited to the OPRA system, noting they had no experience with the OPL system. Notwithstanding the differences between the systems, the weight to be given to any opinion expressed by Drs Anstee and Leung will depend on the issue being considered.

Dr Saul Geffen

374 Dr Geffen is a rehabilitation physician. His qualifications and field of expertise are different to the other expert witnesses called by the respondents (who are all surgeons), yet the questions posed of him on which to provide an expert opinion were, in effect, the same. This included whether certain patients were suitable candidates for osseointegration surgery. As he conceded in cross-examination, he has “only ever referred four patients for consideration of an osteointegration system”. His opinion is therefore derived from the role which he performs in practice of deciding whether someone should be referred to a doctor to investigate undergoing osseointegration. That is not the question posed to him in his brief. Although Dr Geffen has experience in the types of conditions which may be relevant to an assessment of suitability, less experience with the surgery is required to fulfil the role he performs, compared to assessing a patient as suitable for osseointegration. That said, Dr Geffen acknowledged in his report, at times, the need to defer to the opinion of an independent osseointegration surgeon when he opined on orthopaedic and surgical issues. On his own evidence, he therefore limits the weight that could be attached to it on certain issues. He gave evidence that he has looked after amputees and people who have undergone osseointegration surgery, including from the pre-operative to post-operative stage. He is qualified to opine on general matters relating to the conduct of medical practice, and on matters such as aftercare and rehabilitation.

375 However, in relation to the question of suitability and other questions, at times, in his written report Dr Geffen provided gratuitous opinions on matters not related to the question. That, considered in combination with his qualifications and experience, reflects a lack of understanding of the remit of his brief as an expert witness in this matter.

376 Accordingly, with very limited exceptions, I do not rely on the evidence of Dr Geffen in resolution of these issues. Where his evidence is referred to, it relates to matters of a general nature.

Observations in relation to expert witnesses

377 I addressed the expertise of the respondents’ witnesses above. The applicant takes issue with the manner the respondents’ witnesses were instructed (i.e. on occasions their brief included a patient’s affidavit as opposed to assumptions as to facts). It is trite that the underlying facts on which the opinion is based must be established. I am acutely aware of that when referring to any expert opinions below. Where opinions are relied on, I am satisfied the factual foundation has been established.

378 In a comparison of the expert witnesses, the applicant submitted that their witnesses, Dr Al Muderis, Dr Tetsworth and Dr Rozbruch, are globally pre-eminent in the field of osseointegration, having done thousands of cases between them and published dozens of peer-reviewed articles, book chapters, and conference papers (I note that Dr Stoita was not included in this submission). As referred to above, he submitted that regardless of Dr Al Muderis’ opinion not being able to be treated as independent and Dr Tetsworth’s professional relationship with him:

the difference between them and the respondents’ experts in expertise on osseointegration … and in the quality of their reports is so large that the Court would accord their opinions on disputed issues in relation to osseointegration substantially more weight than that of the respondents’ experts.

379 I do not accept that as a global submission, but rather I am of the view that each issue that arises must be considered in light of the relevant evidence. The interests of the witnesses (i.e. arising from any association or past interaction with Dr Al Muderis) may not be so easily dismissed.

380 In his case in chief the applicant chose to only rely on expert reports in relation to the patient case studies that were prepared by doctors with whom he works and, as described below, has very close associations (Dr Tetsworth and Dr Stoita), even in relation to the non-osseointegration patients. Dr Rozbruch, whose expert report addressed more general questions about osseointegration, also has a close association with Dr Al Muderis. It was not until the applicant’s case in reply that he called another expert witness, Dr Sol Qurashi (but in respect to the orthopaedic patients).

381 Further, I note that the applicant submitted that Drs Leung, Anstee, Stalley and Geffen were no more disinterested or impartial than Dr Al Muderis or Dr Tetsworth, primarily because Drs Leung, Anstee and Geffen had dealings with Ms Grieve, and Dr Stalley held animus towards him. I do not agree with that as a general proposition. Although all relevant in assessing their evidence, the interest or lack of partiality of Dr Al Muderis and Dr Tetsworth, is of a different nature, and not comparable as framed by the applicant.

382 That said, I observe that many of the issues in dispute in the patient case studies involve matters of the credibility and reliability of the witness (considered in the context of the relevant evidence), and not ones of expertise.

Other witnesses

Mr Mitch Grant

383 Mr Grant was a patient of Dr Al Muderis and a patient advocate for his practice. Mr Grant was a credible and reliable witness.

384 The applicant withdrew his attack on Mr Grant’s credibility in closing submissions. It was plain from the applicant’s submissions during the trial that he was contending, inter alia, that Mr Grant had a commercial conflict of interest because of his business (which supplies osseointegration parts), which affected his credibility. Further, at several points in the hearing, the applicant alleged that Mr Grant was part of a concoction allegation, contending that it was “wholly beyond coincidence” that some patients had concocted complaints about Dr Al Muderis after contact with Mr Grant (among others), but this was subsequently withdrawn in relation to Mr Grant.

385 The applicant now accepts that Mr Grant is a credible witness other than what he described as “some small things that he misremembered”. However, the differences between Mr Grant’s account and that of Dr Al Muderis, can hardly be described as relating to “small things” or misremembering. Further, although the applicant referred to and relied on aspects of Mr Grant’s evidence, the recitation of it is not complete and in a manner that tended to distort his evidence on those topics.

386 In 2009, Mr Grant had his left leg amputated above the knee because of a motorcycle accident. In September 2011, Mr Grant underwent osseointegration surgery with Dr Al Muderis, using the EndoExo system, with the surgery conducted in two stages. He was Dr Al Muderis’ third patient to undergo the procedure. Mr Grant spoke of his good fortune in having the surgery and had a very positive experience. He has had little problems.

387 Mr Grant started working with Dr Al Muderis as a patient advocate in about 2012 and remained so for about four to five years. The patient advocate role lasted until 2017, although there was a hiatus of about six months in 2015 due to his frustrations with Dr Al Muderis in negotiating a consultancy agreement. I discuss this further below. Mr Grant returned to the role when Dr Rosenblatt became involved in the practice on the basis that he would deal with him (instead of Dr Al Muderis).

388 Against that brief background there are several points to be addressed.

389 First, I accept Mr Grant’s evidence that he became a patient advocate following an approach by Dr Al Muderis, who told him he was doing “really well”, and asked if he would “go and speak to these patients who are interested”. Mr Grant agreed because he was “happy to do so” as he thought the operation really worked and wanted to be able to help other people. He explained that because it was a new procedure, prospective patients benefitted from meeting patients like him who had had the operation.

390 As part of his role, Mr Grant routinely met with people who were considering the surgery to share his experience. He said he was passionate about his work. His role developed over time and got busier. Initially, he dropped by the hospital if he was asked to attend, and later, when Dr Al Muderis launched his clinics, he was asked to, and did, spend the whole day at the clinics. Beyond the clinic, Mr Grant did other things in his patient advocate role at least once a week. According to Mr Grant, there was no set schedule. He would speak to patients or prospective patients at Dr Al Muderis’ rooms, at the hospital or over the phone. Dr Al Muderis would also send patients to Mr Grant’s gym, and Mr Grant would speak with them there. Mr Grant’s evidence was that sometimes he was asked to help entertain someone at dinner.

391 He travelled around Australia with Dr Al Muderis, speaking together at conferences, clinics and groups of interested persons. Eventually, he was travelling overseas with the Osseointegration Group of Australia associated with Dr Al Muderis’ practice eight to ten times a year. On two to three occasions when Dr Al Muderis did not attend (for example, due to a missed flight), Mr Grant was required to present Dr Al Muderis’ part of the presentation, even though he had no medical background, which he felt uncomfortable about. Although that was denied by Dr Al Muderis, I accept Mr Grant’s account. Mr Grant’s travels included trips to the United States, at least until Mr Hernandez was employed, at which point it became his responsibility.

392 In cross-examination, Dr Al Muderis distanced himself from Mr Grant and downplayed his role. He denied that he requested Mr Grant: be a patient advocate; to speak to people; or to attend the clinics. He said it was Mr Grant who requested the title of “patient advocate” and he just voluntarily attended clinics in his free time, without being asked to do so. He also said that the number of trips Mr Grant attended with him was exaggerated, and he travelled in accordance with an arrangement between Mr Grant and the company EndoExo ExoFix Pty Ltd (EndoExo Company), Mr Mark Whelan’s company. He said he had no details about that arrangement, and he never spoke to Mr Grant about his financial circumstances. His evidence was that Mr Grant shared his experience as a patient and was “not talking him up”. Dr Al Muderis said that as a patient advocate, Mr Grant was to share his experiences – “the good, the bad, the ugly” – and that Mr Grant had had several complications. However, that does not accord with Mr Grant’s evidence, who said he had few issues.

393 As to the nature of his role and the circumstances in which it arose, I accept the evidence of Mr Grant. His evidence on this and other topics, in respects, is supported by others. Dr Al Muderis’ evidence is implausible. As foreshadowed earlier, Mr Grant’s evidence concerning his role, and the basis on which he undertook that role, are not “small things that he misremembered”.

394 Second, although Mr Grant gave evidence that Dr Al Muderis never told him what to say to a patient, he had been chosen for the role because of his positive experience. He was asked to share his experience with prospective patients. He said the goal was to get people to do the surgery. He promoted the surgery, with Dr Al Muderis as his surgeon. To suggest otherwise, in the circumstances in which this was done, as the applicant did, is implausible. The promotion of the surgery was to prospective patients of Dr Al Muderis.

395 Third, Mr Grant had Dr Al Muderis’ mobile number; he contacted him whenever he wanted to ask him something; and he responded. Mr Grant explained Dr Al Muderis responded quickly in the early days of his practice but became slower over time. Although Mr Grant confirmed Dr Al Muderis responded eventually, Mr Grant explained others in his team also responded. I note that is in the context of his relationship with Dr Al Muderis, where he was part of Dr Al Muderis’ team.

396 Fourth, Mr Grant was not paid anything in his role as a patient advocate for approximately the first two years, but as the demand grew, he approached Mr Whelan (who provided the implants used by Dr Al Muderis, before he used his own implant) in about February 2014 about a consultancy arrangement with the Osseointegration Group of Australia. They discussed Mr Grant being paid a commission for implants where patients whom he had spoken to had gone ahead with the osseointegration surgery. Those discussions of Mr Grant’s role evolved. While travelling with Mr Whelan and Dr Al Muderis, they would discuss the fact that the manufacturing implants business was growing. He said he would sit next to Dr Al Muderis on flights who would say things to him such as “this is going to be really big” and “we want you to be a part of this”, and “we can pay you a commission and you can have an interest in the business”. At this time in 2014, there was a draft consultancy agreement between Mr Grant and the EndoExo Company which contemplated paying Mr Grant a commission of $2,500 per implant for each patient who went ahead, but it was never signed. He was adamant in evidence that he spoke to Dr Al Muderis about these arrangements, that there were “a lot” of discussions with him, and it was clear to him that it was Dr Al Muderis who was the ultimate decision-maker. From his perspective, during his time, Dr Al Muderis was the “boss of the Osseointegration Group [of Australia]”.

397 Mr Grant said he became frustrated as the negotiations dragged on. Eventually, there was an agreement to pay him $500 each time he attended a clinic. He said he was told that by Mr Nick Birbas, who he understood was Dr Al Muderis’ lawyer. Mr Grant said Dr Al Muderis told him that he covered the cost of his implant in exchange for being a patient advocate. Mr Grant considered that misleading because although Dr Al Muderis did not charge him any out-of-pocket costs, his insurer still paid Dr Al Muderis for his surgery. He elaborated:

He goes around saying that he does the surgery for free, but we’re in a country where the private health pays for it. So he gets seventy-something thousand dollars from HCF or Medibank or whoever. Maybe he might not charge his surgery fees over – over the two or three grand or whatever it is, but he still gets paid. More – with mine, it was maybe a little bit different, because, as you said, you know, it was – he – I don’t know who owned the implant back then, but HCF, from what I’m aware, paid someone for something.

398 I accept Mr Grant’s evidence of his interactions with Dr Al Muderis in relation to attempts to negotiate a financial arrangement, and the reasons why he pursued it with Dr Al Muderis. I note also that, as discussed elsewhere, there was a commission paid to Mr Hernandez, of which Dr Al Muderis was aware.

399 Fifth, Mr Grant said that in the early days, Dr Al Muderis assessed fewer patients as being suitable for osseointegration. However, by the end of his time with Dr Al Muderis in about 2017, Mr Grant’s impression was that Dr Al Muderis would say that almost anyone was suitable for the operation. He said he could see the pool of prospective patients Dr Al Muderis was advising included smokers, diabetics, elderly patients and severely overweight patients, when previously that had not been the case. He accepted that for overweight patients they were told they should lose weight, but even if they did not, the surgery still went ahead. (I note Dr Al Muderis’ evidence is that he would advise a patient to lose weight, but he cannot “dictate to the patient what to do”, with the implication being the surgery goes ahead nonetheless.) Mr Grant’s experience is based on what he saw as a patient advocate, the types of patients in the waiting rooms, and in the Osseointegration Facebook group. A consideration of the patients in the case studies supports this. In addition to Mr Grant, there is also evidence from other witnesses that Dr Al Muderis’ selection criteria broadened over time, from Dr Al Muderis himself, Dr Doshi, Dr O’Carrigan, and Dr Tetsworth.

400 Mr Grant also maintained hearing Dr Al Muderis say to patients “you’ll be back, you have no other option, you have nowhere else to go”, particularly to the American patients. Mr Grant gave evidence that Dr Al Muderis gave patients a lot of hope that their surgery would be successful. He said Dr Al Muderis said things like “we’ll make you walk” or “you’ll be up in no time”. Mr Grant saw him say to patients at international conferences words to the effect that it was a “no brainer” that they needed this surgery. He denied that evidence was incorrect, and although he accepted in cross-examination that he could not recall the name of a particular patient whom Dr Al Muderis had said this to, he was clear that Dr Al Muderis said it quite often. Again, there is other evidence which is consistent with this both as to Dr Al Muderis saying to a patient that they would be back (e.g. Ms McIntyre), and the positive statements he says to prospective patients that he will make them walk (see [2264] and discussion in sting 2, Part 7).

401 Sixth, Mr Grant said he observed Dr Al Muderis treat his staff terribly and explained that this was the norm, not the exception. He witnessed Dr Al Muderis’ bad treatment of staff from the very beginning and reiterated this in cross-examination. His evidence was that Dr Al Muderis was never polite to his staff and would not talk to them like he would talk to other people. He said he witnessed many instances where Dr Al Muderis yelled and abused staff, particularly female staff. Mr Grant rejected the suggestion that Dr Al Muderis did not particularly target female staff, explaining that he saw Ms Belinda Bosley (who previously worked as Dr Al Muderis’ clinical and research coordinator and business manager, as well as his pre-operative nurse surgical assistant) and other staff cry on multiple occasions. Mr Grant confirmed Ms Bosley would also yell at Dr Al Muderis, describing their behaviour as “very unprofessional, the pair of them … It was always about the work context, like, something she was doing wrong or something”. He detailed examples of the conduct. Mr Grant said Dr Al Muderis’ behaviour exacerbated over time. Dr Al Muderis denied this conduct in relation to his staff. I will return to this below, suffice to say at this stage, I accept Mr Grant’s evidence. It is supported by other evidence.

402 Seventh, as referred to above, Mr Grant stopped working with the Osseointegration Group of Australia in 2017. He deposed that one reason for this was because of the issue about payment. Mr Grant explained:

… ultimately, we couldn’t come to an agreement, … I felt used. I felt let down, because … I did think of him as a friend first and foremost. Yes, [Dr Al Muderis] was a surgeon but – but also a friend, and they promised me all this stuff … I’m happy to do things for free, but then there has got to become a time … the contract … that never came from me. That came from them. I didn’t stipulate three per cent or – or – or a dollar figure. I didn’t stipulate nothing. They did all that. So they led me to believe there was going to be a great future in this with them, and … I felt like I was just getting dragged along. … it wasn’t all about the money. It was about helping the patients … There was many factors. … but that was a big part of it – was because we couldn’t come to an agreement.

403 He also said he thought the team was run poorly. He felt that Dr Al Muderis had grown a huge ego, which became worse over time as he became wealthier and more famous. When challenged in cross-examination, he explained:

it was definitely not what it was in the first couple of years … as he grew as a personality, things started changing, and the culture changed. It wasn’t a type of environment, obviously, I wanted to work along, but, like I said, when Solon come along and I was told that I don’t have to … deal with anybody other than Solon, that’s when I was excited, because like I said, I felt Munjed … was going the wrong way… and then that sort of all unfolded again …

404 He described it as being like the “Munjed show”, with the surgery coming second. Based on his observations of patients, he did not like the way Dr Al Muderis was pressuring patients, referring particularly to those from the United States.

405 Mr Grant said he believes Dr Al Muderis is giving osseointegration a bad name because he does not deliver the great experience that osseointegration is capable of bringing patients. When challenged, Mr Grant conceded that was “not 100% of the time”, but he thinks it is a true statement. He explained:

… there’s a lot of surgeons that won’t work with him, so it makes it difficult for us as a whole [and] me personally to grow the brand of osteointegration, to be able to reach patients. My goal is not to give everyone an implant that needs it, or make money. My goal is to … have it … available in the public system, which we did, and be able to have people in Australia who may be able to have access to great medical benefits that they can’t afford …

406 Mr Grant’s evidence included the difficulties that he said have arisen in relation to Dr Al Muderis’ patients using his connectors and adapters (instead of those used by Dr Al Muderis). Mr Grant understood that Dr Al Muderis told patients not to use the parts he was selling as it voided their warranty. This is supported by other evidence, for example, Facebook messages from patients of Dr Al Muderis. His evidence is that a number of health professionals and patients will not use his product, for fear of going against Dr Al Muderis. I note that this is the connector that was used by Mr Smith which caused the issue with Dr Al Muderis, described by him in his case study: see Part 6, Section 7.

407 Eighth, Mr Grant gave evidence of his perception of the conflict of interest which occurs when a doctor owns the implant he is promoting and using in surgery. As he described:

if I own the product and I’m also inputting the product in – morally, you’re not supposed to … a surgeon shouldn’t own a product that they’re putting in because at the – the end of the day they could potentially not do what’s best for the patient, [but] do best what’s for their bottom dollar.

408 This is in the context where Mr Grant said that during the discussions of his position, Dr Al Muderis told him that he himself could not own an interest in an implant or a company as a surgeon, which Mr Grant said he believed.

409 It is permissible for Dr Al Muderis to own the part (the implant), provided it is declared to patients. However, as noted elsewhere, ownership of rights in the implant has the capacity to compromise the integrity of a patient’s decision about whether to have osseointegration surgery. Owning the product may also act as a disincentive to inform patients of alternatives to the surgeon’s proprietary implant.

Mr Fred Hernandez

410 Mr Hernandez lives in the United States and was an osseointegration patient of Dr Al Muderis. He underwent the surgery in April 2013. Following his surgery, Mr Hernandez became a promoter of Dr Al Muderis’ services in the United States, however, the capacity in which he did so was an issue of dispute in the trial.

411 His affidavit was read in the proceedings, however, the applicant did not require Mr Hernandez for cross-examination, having reached an agreement with the respondents that, in such circumstances, they would not take a Browne v Dunn point, on the applicant’s failure to do so. This occurred in a context where an application was made by the respondents for him (and certain other persons) to give evidence by AVL. The applicant submitted that the Court cannot be satisfied that any of Mr Hernandez’s evidence is a genuine attempt at recollecting events that actually happened. He also contended that Mr Hernandez’s evidence is a fiction devised to advance his commercial and emotional goals, such that no weight should be placed on his evidence unless it is an admission against interest or corroborated by reliable evidence. Not cross-examining Mr Hernandez was a forensic choice the applicant made. However, the Court is left to assess his evidence. That Mr Hernandez has not been given an opportunity to address the allegations that the applicant makes, is relevant to assessing his evidence.

412 In the Broadcast, Mr Steinfort asked Dr Al Muderis about Mr Hernandez and whether he had paid people to recruit patients for him – to which Dr Al Muderis responded: “No. That’s not the case” and “I don’t have to do that, Tom”. This led to the following interaction in the Broadcast:

Mr Steinfort: What about Fred Hernandez? Was he paid to try and recruit patients for you?

Dr Al Muderis: No. That’s not true.

Mr Steinfort: It’s not true?

Dr Al Muderis: Definitely not true. I mean – look, honestly, this is not true. I mean Fred is just a piece of work. Anyway – Tom, why would I do that? Why would I do that? I have patients – like, we’re choked with patients. We can’t even – we can’t even do our day to day work and – in – in a sensible way. We try to provide safe practice and I don’t have enough hours in the day to function.

413 The above extract relates to Imputation [13.29] which alleges that Dr Al Muderis lied to 60 Minutes about paying people to recruit patients for him (and Imputation [16.19] which alleges Dr Al Muderis lied about paying commissions to Mr Hernandez).

414 Further on this topic, during the interview (as part of the raw footage transcript but was not included the Broadcast), Dr Al Muderis also denied that Mr Hernandez received any financial incentive for referring patients to him, saying his job was merely to provide parts and distribute components to patients in the United States stating, inter alia, that Mr Hernandez “had no links to [him] as a surgeon”. Dr Al Muderis said Mr Hernandez worked for Osseointegration International, the manufacturing company.

415 As will be addressed further below, Dr Al Muderis’ evidence on the topic of his agreement and involvement with Mr Hernandez was inconsistent.

416 The applicant’s closing submission was scathing of Mr Hernandez, as were Dr Al Muderis’ comments in his interview with Mr Steinfort, where Dr Al Muderis referred to Mr Hernandez as “a piece of work”. He submitted that:

Mr Hernandez has waged a campaign of denigration against Dr Al Muderis, initially borne out of a breakdown in their business relationship and later exacerbated by Dr [Al] Muderis’ successful lawsuit against Mr Hernandez …

…

Mr Hernandez has influenced a number of witnesses in these proceedings to give adverse evidence about Dr Al Muderis.

417 It is appropriate at this stage to look at other aspects of his evidence, although the allegations in relation to Mr Hernandez are further addressed below in considering the patient case studies.

Background

418 Mr Hernandez had osseointegration surgery with Dr Al Muderis in 2013. It is unnecessary to refer to all of Mr Hernandez’s evidence as to how this came about. In short, he explained he was interested in having osseointegration surgery but could not afford it. He said as a result he sent a proposal to various surgeons in February 2012, including Dr Al Muderis, to the effect that he would actively promote osseointegration technology at a grassroots level on a full-time basis in the United States in exchange for complimentary osseointegration surgery. Mr Hernandez also said he emailed a link to his website to Dr Al Muderis’ email address. He said he was subsequently contacted by Ms Bosley, followed by a call from Dr Al Muderis, saying he would be in San Francisco for a conference, that he liked Mr Hernandez’s website and that he had described Dr Al Muderis on the website as a “pioneer of osteointegration”. In late February 2012, Mr Hernandez sent a proposal letter to Dr Al Muderis. In the letter, Mr Hernandez wrote:

My objective is to not only obtain the implant but to engage in a partnership with Osseointegration Group of Australia to bring awareness to their Endo-Exo technology here in America. I believe there is an opportunity for the company to engage in a grassroots campaign here in the states. By doing so, it will not only ensure brand recognition once FDA approval occurs but will increase sales of their product by bringing awareness to the amputee and general public. I am more than prepared to actively promote this technology full time.

…

I propose Osseointegration Group of Australia sponsor my implant surgery and engage in a partnership to bring awareness to the general public in America; by participating in large media events and engaging the public sector on a personal level. This level of awareness can be achieved by simple but effective means by profiling the technology and more importantly the company’s product at major events. …

…

This type of grassroots campaign would not only bring awareness to osseointegration technology but more specifically allow Osseointegration Group of Australia’s product to be the first name that comes to mind when Americans hear about implant technology. …

…

Garnering interest in America will bring an increase in sales by motivating amputees to obtain the surgery. Osseointegration technology is a life changer and once amputees see the implant for themselves, they will do whatever it takes to obtain it.

419 In around early January 2013, Mr Whelan telephoned Mr Hernandez in response to the proposal letter and said words to the effect of:

… last year we weren’t ready, but now we are and we want you to put on a couple talks in Los Angeles, one oriented at patients and one oriented at medical professionals, we want to meet you in Los Angeles.

420 In or around early January 2013, Mr Hernandez met Mr Whelan in Los Angeles at a hotel, who at the meeting said words to the effect of: “We want you to give these talks” and:

we want you to market for us and promote us on social media and blog about your journey through osseointegration surgery to raise Dr Al Muderis’s profile and the profile of the Osseointegration Group of Australia (OGA) in North America primarily.

According to Mr Hernandez, there were discussions about what the work with them would entail. Mr Hernandez’s evidence was that in liaison with Mr Whelan, he assisted with the organisation of a conference in Los Angeles in February 2013. At the conference he also met and spoke to Dr Al Muderis, Ms Bosley and Mr Grant. He said that when they were all out socially having drinks at the bar, Dr Al Muderis verbally agreed to provide osseointegration surgery to him, saying words to the effect of: “Come to Australia and I will do the surgery for you”. Also at the bar, Mr Whelan said words to the effect of: “We will pay for your surgery and accommodation in Australia for your promotion of OGA [Osseointegration Group of Australia] and Dr Al Muderis”. Following this, Mr Hernandez emailed back and forth with Mr Whelan and Ms Bosley about plans to come to Australia. In or around March 2013, Mr Hernandez flew out to Australia for osseointegration surgery with Dr Al Muderis.

Arrangements with Dr Al Muderis

421 The applicant’s case is that Dr Al Muderis had nothing to do with the arrangements in relation to Mr Hernandez’s surgery, and the circumstances in which he began working for them. He said all the arrangements (including what occurred after surgery) were organised with Mr Whelan, and later Osseointegration International. The applicant submitted he was not involved in any way, and did not know of or approve the arrangements. He contended that the suggestion of being party to the arrangements is implausible and made up by Mr Hernandez to hurt Dr Al Muderis.

422 I do not accept that submission. The evidence establishes that in practical terms, Dr Al Muderis was involved. As with Mr Grant, Mr Hernandez understood that it was Dr Al Muderis making the decisions. That is hardly surprising as what was being promoted by each, was osseointegration surgery to be performed by Dr Al Muderis. There is also email evidence which makes Dr Al Muderis’ involvement clear( e.g. an email dated 6 June 2013 from Mr Hernandez which states that Mr Hernandez had discussed with Dr Al Muderis plans for the United States).

423 Mr Hernandez’s evidence was that Dr Al Muderis and Mr Whelan were working together on this enterprise, with Mr Whelan undertaking the business side. He said that in the period that followed his surgery, he received a monthly pay and a commission for each patient that he referred to Dr Al Muderis to have surgery. In 2015, he was told by Mr Whelan that a new company would be taking over the payments to Mr Hernandez. In April 2015, Dr Al Muderis’ lawyer and CEO of Osseointegration Group of Australia and Osseointegration International, Mr Birbas, became involved and arranged a written contract. An email from Mr Birbas to Mr Hernandez dated 7 April 2015 included the following:

I will be speaking to Munjed over the next few days and I am aware that you are an important part of our team so I will be suggesting we formalise a contract for your services. Can you please advise of your rates you are currently charging, the description of the work you will be performing and I can then discuss it with Munjed and include in the contract. I can then get a draft contract over to you during the course of next week.

424 Dr Al Muderis was copied into this email (as were Ms Bosley and Mr Whelan). Mr Hernandez was also told in this email to send his invoices to Mr Birbas and that those invoices should be made out to Osseointegration International. In a later email exchange dated 8 April 2015, Mr Whelan, Mr Birbas and Mr Hernandez emailed back and forth about invoices and payment owed to Mr Hernandez. Dr Al Muderis was copied in this email chain. There is documentary evidence which supports Mr Hernandez’s evidence, including a contract (discussed below), invoices and emails. I also note in relation to an email sent by Mr Whelan on 19 March 2015 where he tells Mr Hernandez “[t]he new company is taking over the payments to consultants”, the applicant submitted that there was nothing in that email to suggest that the payments were commissions. Given the circumstances in which the payments were made, the compelling inference given the evidence, is that they were commissions. That description is apt.

425 Although much of the written documentation is with Mr Whelan and then Mr Birbas, I am satisfied that Dr Al Muderis was aware of, and involved in, the arrangements (and knew the basis for it). Mr Birbas was Dr Al Muderis’ lawyer, and to state the obvious, would have been working under his instructions and with his approval.

426 At the time of the breakdown of the relationship in August 2018, in email exchanges between Mr Hernandez, Mr Birbas and Dr Al Muderis, Mr Hernandez made his position clear. One email in this exchange, which was addressed specifically to Dr Al Muderis, included:

Moving forward, I am happy to continue to work for OGA but only under a specific contract that details what my duties are and under clear guidelines. … As there are a lot of unhappy patients out there and I hear from them all on a regular basis. Your reputation in the U.S. is not getting any better and I am finding it more and more difficult making excuses for your behavior and lack of patient follow up. I don’t think you have any idea of how many people are unhappy with the level of service coming out of Sydney; other than the nursing staff and physio team.

…

Look, anyone can show up at a booth and say, hey look at my implant but not everyone can do what I do and have done in this industry. Personally I feel confident that I have done an excellent job for you over the last five years. I know you probably feel differently but no one in the U.S. really knew who you were before I started creating and building up this persona and hitting the marketing aspect hard. Before me, you couldn’t find the subject of Osseointegration in the social media world; let alone any information on you and the OGA team.

427 This was Mr Hernandez’s state of mind at the time. Irrespective of whether his position was correct, Dr Al Muderis was put on notice that this is what Mr Hernandez perceived the position to be in relation to his patients who had returned to the United States after surgery. It is a contemporaneous statement which reflects his view of the role of Dr Al Muderis, and the nature of his relationship with him. This was in reply to an email from Dr Al Muderis which included the statement: “I thought we had an agreement in Tuscon which appeared in my view to be working well – I need to know what has changed?” Again, this reflects Dr Al Muderis’ relationship with Mr Hernandez, which is consistent with Mr Hernandez’s understanding, that is, that there was an agreement as to their dealings (which Dr Al Muderis was aware of). Nonetheless, the email written by Mr Hernandez was on the basis that he still wished to do business with Dr Al Muderis. Mr Hernandez’s agreement was terminated, according to an email from Mr Birbas (in the same email chain, with Dr Al Muderis copied), on the basis that he had reached out to a competitor which was in “direct conflict to [Mr Hernandez’s] obligations under our agreement”. That is, it was said he breached the exclusivity clause which was part of his agreement with Dr Al Muderis and Osseointegration International.

428 The applicant’s submission is that Mr Hernandez was working for Mr Whelan and the EndoExo Company (i.e. the implant company, not Dr Al Muderis). However, when Dr Al Muderis set up Osseointegration International, Mr Hernandez, as an “important part of [Dr Al Muderis’] team”, went with him. That is, Mr Hernandez continued to perform his role, but through Osseointegration International. That is because his role related to Dr Al Muderis. Mr Hernandez continued his role, even though the implant being promoted at that stage was not that used in his own surgery, but Dr Al Muderis’ design. Further, as to Mr Hernandez’s role, he was referred to by Ms Roberts and others in written communications as their “representative” (including in the August 2018 email to patients at the time of the breakdown of Mr Hernandez and Dr Al Muderis’ relationship). As at that time, Mr Hernandez’s email signature referred to himself as the “US Operations Manager, Osseointegration International”. As discussed elsewhere, his role included: the promotion of Dr Al Muderis’ surgery on social media and at meetings/conferences; preparing and distributing promotional brochures and flyers (including for Dr Al Muderis’ upcoming conferences); organising booths at conferences; and meeting and liaising with (prospective) patients. His evidence on these activities is supported by other evidence, for example, the email exchange referred to above in Ms Roberts’ section in Part 5, Section 5, in relation to the organisation of a clinic in New York.

429 As evident from the discussion above, Mr Hernandez’s evidence is supported by documentary evidence (e.g. the invoices sent by Mr Hernandez, the draft contract and emails).

The terms of the arrangement

430 It will be recalled that Mr Birbas wrote to Mr Hernandez about formalising a contract: see [423] above.

431 Dr Al Muderis had an ongoing and mutually beneficial financial relationship with Mr Hernandez from around April 2013. As Mr Hernandez described, there was a written contractual relationship from May 2015. Although the contract in evidence is signed only by Mr Hernandez, as illustrated above, it is clear there was an agreement to that effect between the parties.

432 The contract was stipulated to be between Osseointegration International (The Practice) and Mr Hernandez (Contractor). Osseointegration International, albeit a subsidiary to a chain of companies in a corporate structure, is Dr Al Muderis’ company. His partner, Ms Roberts, is the current director and secretary, and he is the sole shareholder. At the time the contract was entered into with Mr Hernandez, Dr Al Muderis was one of two directors of Osseointegration International, the other being his lawyer, Mr Birbas.

433 The terms of the contract are clear: Mr Hernandez, as an independent contractor, was entitled to and paid a service fee of US$3,500 per month, and a commission of US$1,000 for every patient he refers that purchases an implant by “the Surgeon”. “Surgeon” is defined as Dr Al Muderis. It was an agreement that exclusively benefited Dr Al Muderis given only Dr Al Muderis was identified and defined as “the Surgeon”. The recitals to the contract stated that the “Contractor agreed to provide services to the Practice and the Surgeon” in return for payment. The agreement stipulated that Mr Hernandez was to provide his services to assist Osseointegration International and Dr Al Muderis (as the named surgeon). Among other clauses, the agreement included that its terms were to be kept confidential (cl 15.3) and Mr Hernandez was not permitted to disclose the business interests of Osseointegration International or Dr Al Muderis (cl 15.6). A plain reading of the clauses reiterates that it prevented Mr Hernandez from disclosing to patients that he was receiving a commission on the sale of implants he was promoting to them. That is, the prospective patients who contacted Mr Hernandez for assistance, information or advice, under the terms of the agreement could not be told that he would receive a commission if they agreed to undergo the surgery. In effect, Mr Hernandez could not tell them he was paid to promote the surgery, and Dr Al Muderis.

434 In around July or August 2016, Mr Hernandez renegotiated the base salary for the service fee to US$5,000 per month, plus the commission. His evidence is this negotiation was with Dr Al Muderis in person. In these proceedings, Mr Hernandez produced invoices he issued to Osseointegration International from June 2015 to May 2017, which reflect: the fee terms of the agreement; the increase to US$5,000 as “approved by Munjed” (as recorded on the invoice of 1 July 2016); and the patients he obtained commission for after they had surgery with Dr Al Muderis, including Ms Schaeffer, Ms Koolhoven and Ms Ulrich (each a witness in these proceedings). They were three of the many patients referred to in the invoices for which Mr Hernandez received a commission.

Dr Al Muderis’ evidence in relation to Mr Hernandez

435 Dr Al Muderis was cross-examined on the terms of the contract between Osseointegration International and Mr Hernandez. His answers were unsatisfactory. Dr Al Muderis said the “contract [with Mr Hernandez] came to [his] knowledge in the 60 Minutes” program. He said he had not read the contract before then. As alluded to earlier, on several occasions in cross-examination, Dr Al Muderis said he did not understand the contract, and that “I’m not a qualified person to put a contract or make a contract or understand the contract”. I do not accept that evidence or that he regarded himself in that position, but rather it was entirely disingenuous to suggest that he could not understand the contract. This was an answer given to avoid admitting his understanding of the meaning of the plain terms of the contract. Dr Al Muderis’ cross-examination in relation to the contract was not just evasive, it was false.

436 Dr Al Muderis’ answers after being taken through the contract in cross-examination are telling of his disingenuous attempts to distance himself from the arrangement:

Dr Collins: That was your understanding of the nature of the agreement?

Dr Al Muderis: Yes. But that doesn’t specify – it’s contract to provide services for – it could be many surgeons.

Dr Collins: Well, you see it’s:

…to assist the practice and the surgeon.

You see that?

Dr Al Muderis: Yes. But he was – my understanding, that he was paid for – commission to any surgeon. So if he sell in America, he get a commission for that. He sell in Canada, he get commission for that. If it’s in the UK, he gets commission for that. So it’s not specific to one particular surgeon.

Dr Collins: Yes. You see, Doctor, you know that’s not true, don’t you, because you know that the term “the surgeon” in this agreement is defined to mean you and you alone?

Dr Al Muderis: That’s not true.

Dr Collins: All right. Can we go to the next page, please? You see the definition of surgeon under [cl 1.1(n)] ... surgeon means you?

Dr Al Muderis: Yes. But I – okay. I can see that.

Dr Collins: Yes. Well, that was – this was an agreement to provide services to Osseointegration International and to you personally, wasn’t it?

Dr Al Muderis: Well, I don’t – I don’t understand that but that’s what I can read here now.

437 As evident from the discussion above of the work that Mr Hernandez undertook, it was consistent with the terms of the contract. He was promoting the surgery and Dr Al Muderis as a surgeon.

438 Dr Al Muderis denied the obvious in evidence to maintain the position he stated to Mr Steinfort, that he had no links to Mr Hernandez and did not pay people to recruit patients for him. Given the evidence, it is apparent he denied it in the interview because it reflected adversely on him. The statement to Mr Steinfort that Mr Hernandez “had no links to [him] as a surgeon” was false. The evidence shows that Dr Al Muderis had an ongoing and mutually beneficial financial relationship with Mr Hernandez from around April 2013 until 2018 (when the relationship broke down). I also do not accept Dr Al Muderis’ answers in cross-examination that only Mr Birbas was aware of and negotiated the contract with Mr Hernandez. This was another attempt to distance himself from Mr Hernandez.

439 When the relationship broke down, Dr Al Muderis said he spoke to Mr Hernandez complaining he was selling products other than those produced by Osseointegration International to others, which was in breach of the exclusive nature of the contract. Dr Al Muderis gave evidence that by doing so, Mr Hernandez was contravening the agreement to represent Osseointegration International. It follows, that Dr Al Muderis must have been aware of the terms of the contract as at the date of the confrontation with Mr Hernandez in 2018. It is timely to recall that Dr Al Muderis later said in cross-examination that he had not read the contract before the Broadcast on 6 September 2022.

440 Dr Al Muderis’ evidence that Mr Hernandez was paid a commission on the sale of the implant, rather than to recruit patients for him, is artificial. It is an artifice set up likely to distance himself. It does not reflect the nature and reality of Mr Hernandez’s role (as supported by the evidence discussed above). Mr Hernandez liaised with patients and promoted Dr Al Muderis – not to sell them an implant – but to have them undertake the surgery. As his invoices reflect, after they had surgery, he was paid a commission. Dr Al Muderis denied that he paid people to recruit patients for him. That was the arrangement Mr Hernandez had with Dr Al Muderis since 2013 until it was terminated in 2018. Dr Al Muderis’ evidence was plainly false.

441 Although I addresses to the stings below, I am satisfied that Imputations [13.29] and [16.19] are substantially true – that Dr Al Muderis lied to 60 Minutes about paying people to recruit patients for him and about paying commissions to Mr Hernandez.

Other evidence

442 There are some further observations to be made about Mr Hernandez’s evidence.

443 First, Mr Hernandez’s evidence is not to be considered in isolation. Dr Al Muderis also sought to distance himself from Mr Grant and Ms Stewart on the basis it was not him but Mr Whelan who made any arrangements with them as to their respective roles with Dr Al Muderis. As discussed there, I do not accept the submission for either of them.

444 Second, there are some similarities with the evidence in respect to Mr Hernandez and Mr Grant. Mr Grant gave evidence of undertaking a role as a patient advocate predominantly in Australia and for some time internationally, and of his interactions with Dr Al Muderis (including in relation to discussions concerning a financial agreement). As explained elsewhere, Dr Al Muderis said that Mr Grant travelled by an arrangement with the EndoExo Company, Mr Whelan’s company. Dr Al Muderis said he had no details about that arrangement, and he never spoke to Mr Grant about his financial circumstances. However, I have found that: Mr Grant spoke to Dr Al Muderis about these proposed financial arrangements; there were “a lot” of discussions with him; and it was clear to him that it was Dr Al Muderis who was the ultimate decision-maker. Mr Grant’s evidence was that by talking to prospective patients about his experience, his goal was to get them to have the surgery with Dr Al Muderis. Mr Grant was eventually paid $500 for each clinic he attended. Dr Al Muderis told him that he had covered the cost of Mr Grant’s implant in exchange for him being a patient advocate, as the basis for not remunerating Mr Grant for his role.

445 Third, both Mr Grant and Mr Hernandez were submitted to be part of the concoction allegation. As explained elsewhere, the applicant initially alleged this about Mr Grant, only to withdraw it at the end of oral submissions, following a question from the Court. It had been suggested that a cohort of patients changed their evidence after they had dealings with Mr Grant. Nonetheless, this reflects the preparedness of the applicant to make such serious allegations blaming others, where it appears there is no basis. Although, the same submission was made about Mr Hernandez, he has not had an opportunity to respond, because of the applicant’s decision not to cross-examine him. It is said that the description of Mr Hernandez’s conduct is apparent from his electronic communications with various people. It can readily be accepted that Mr Hernandez strongly dislikes the applicant and the basis for that is obvious (after the relationship was terminated, Dr Al Muderis sued Mr Hernandez for allegedly making false and misleading statements concerning Dr Al Muderis, Osseointegration Group of Australia and Osseointegration International, where Dr Al Muderis then obtained summary judgment against him for US$2,610,000). However, the communications do not support the applicant’s submission. That he may have given names of patients to Ms Grieve to assist her investigation does not support the submission. To the contrary, asking witnesses to come forward and speak of their experiences is not inappropriate, and does not support a submission that their evidence is fabricated. It is also in a context where shortly prior to the termination of his agreement in 2018, Mr Hernandez said to Dr Al Muderis that many people were unhappy with his care. The patient witnesses alleged to have been part of the cohort that concocted complaints about Dr Al Muderis (e.g. Ms Schaeffer, Mr Bruha and Mr Ladouceur) denied the assertion.

446 Finally, the submission that Mr Hernandez influenced a number of witnesses in these proceedings to give adverse evidence about Dr Al Muderis is addressed below. Suffice to say, as just observed, it may be accepted that Mr Hernandez holds strong views against Dr Al Muderis. It may also be readily accepted the language Mr Hernandez used in private exchanges with others (e.g. Ms Schaeffer and Mr Grant) while watching these livestreamed proceedings on YouTube was unpleasant. However, the evidence of his communications with others does not support the applicant’s assertion. There is no suggestion in any of the material before the Court that he influenced anyone to give false evidence. Rather, in his messages with Mr Grant in September 2023, Mr Hernandez speculated about what he might be asked about in cross-examination and said “[i]t’s all truth anyway”, to which Mr Grant replied “[i]f you just say the truth you got nothing to hide”. I return to this topic below.

Ms Shona Stewart (formerly Wilmot)

447 Ms Stewart is a former employee of Dr Al Muderis. She featured in the Publications, where she alleged unethical practices by Dr Al Muderis including high-pressure sales tactics, inadequate patient selection and aftercare, and an abusive workplace culture.

448 Ms Stewart was a generally honest witness, albeit aspects of her evidence were rather unsatisfactory. I do not accept the applicant’s submission that her evidence was fabricated. Her evidence on some significant topics is supported by other evidence.

449 Ms Stewart’s evidence was that she met Dr Al Muderis in 2013 and by 2014, had worked with him as a nurse employed at Macquarie University Hospital. She commenced working for him in about January 2015 as an “Osseointegration Coordinator”. She explained that she was “effectively a nurse” in that position as well as a “patient liaison”:

I helped patients in their journey from when they first approached the clinic, through their initial consultations with Dr Al Muderis, through surgery, and then in their aftercare.

450 She resigned on 20 March 2017.

451 Ms Stewart’s evidence was that she was in a relationship with Dr Al Muderis from around December 2013 until late 2015 or early 2016. She said it ended amicably. The applicant submitted that there was only a one-off sexual encounter with Ms Stewart, in 2013. He submitted that she was initially employed by Mr Whelan in a non-clinical role, and it was not until mid-2016 that Dr Al Muderis employed her to work in the clinic as a nurse. He submitted that Ms Stewart resigned in March 2017 to work closer to home. Apart from being directed to Ms Stewart’s credit, I assume this submission is to limit the time Ms Stewart was said to be exposed to Dr Al Muderis.

452 The documentary evidence establishes that Ms Stewart was offered the Osseointegration Coordinator position on 16 January 2015, which she agreed to commence in February 2015. Although the covering email is from Mr Whelan, it copies Dr Al Muderis, and it is apparent from the face of the email that the discussion and agreement as to salary was a separate conversation between the three of them. She was to be working with the “OI team”. Ms Stewart said that she was initially paid by the EndoExo Company but was under the direction of Dr Al Muderis. That she was under his direction is supported by the terms of the agreement that she “attend all OI clinics and attend the office of A/P Al Muderis 4 days a week and a work from home arrangement as agreed upon with A/P Al Muderis prior to commencement”, as well as the job description:

… [The employee] [i]nteracts with patients … with regard to patient-related issues as directed by A/P AL Muderis … [and] [m]akes decisions … with instructions from A/P Al Muderis.

453 I note that Mr Grant also gave evidence that he understood the relationship between Mr Whelan and Dr Al Muderis was such that Dr Al Muderis was the decision-maker. This also accords with the evidence of Mr Hernandez.

454 I note also that, as apparent from the email described below at [574], in February 2016, at a time before Dr Al Muderis said he employed Ms Stewart, Dr Al Muderis was giving her directions and had been for some time. There are documents which demonstrate that in 2015 and early 2016, she was liaising with and obtaining information from prospective patients who had made inquiries, on behalf of Dr Al Muderis. The applicant’s evidence that Ms Stewart only worked with Dr Al Muderis for around seven months is not supported by the evidence.

455 Ms Stewart said that when Dr Al Muderis discovered she had begun a new relationship in May 2016, he sent her to work at new locations, including where she had no direct contact with him, patients or other members of the team.

456 Ms Stewart’s resignation in March 2017 is also not as simple as the applicant contended. In her letter of resignation, she states:

Over the last few months I feel that my role within the team has not been meeting my professional expectations nor your’s.

457 This is consistent with her evidence of what occurred while working for Dr Al Muderis.

458 Other aspects of Ms Stewart’s evidence, which are challenged by the applicant, are supported by other evidence. To provide several examples.

459 First, Ms Stewart gave evidence that “a big part of her role [with Dr Al Muderis] was sales”. She described being given a spreadsheet on her first day, with a list of prospective patients. Her goal, she was told, was to contact them “to get them to come to the clinic and have surgery”. She explained the spreadsheet had details from online forms completed by prospective patients from all over the world. I note the position description for Ms Stewart’s role included “to assist the business module of the OI team”.

460 As discussed in more detail below, there is other evidence that Dr Al Muderis promoted his business and that he wanted people to undergo osseointegration surgery with him (see e.g. discussion under stings 1 and 6 in Part 7, Section 1). His practice in the United States is an obvious example. Further, Ms McIntrye (a prospective patient) gave evidence that after she had an initial consultation with Dr Al Muderis about osseointegration surgery, she told him she wanted to consider her position. Dr Al Muderis was aware that she was also considering surgery with another surgeon in South Australia. About a week after the consultation, Ms Roberts attempted to contact Ms McIntrye by phone and then by email. Ms McIntyre did not respond. Dr Al Muderis’ evidence was the email was “a standard follow-up for patients who come to the clinic”. I note Ms Stewart’s evidence was that:

Dr Al Muderis said to me on a number of occasions words to the effect “Your job is to get [patients] to come and have surgery.” … If I called a patient and they didn’t answer, Dr Al Muderis made me follow up with an email and a text message to their mobile number.

461 The compelling inference is that Ms McIntrye was contacted as part of the practice’s business model, with the objective of wanting her to agree to having surgery with Dr Al Muderis: see Part 6, Section 2.

462 Second, Ms Stewart gave evidence that Dr Al Muderis and Ms Bosley told her to advise patients to fundraise (i.e. to raise money to pay for the cost of the surgery). She observed that practice occurring and participated in it herself. In evidence is a 2016 email from Dr Melton, a United States-based practitioner. She wrote to Dr Al Muderis of a patient who “may be interested in OI in the future, though funding will be a problem”. Dr Al Muderis replied, “[the patient] is suitable for osseointegration from the X Ray point of view … We may need to start a discussion with the patient to teach him how to do fund raising for his surgery”.

463 Further, as explained below, Ms Ulrich, Mr Bruha and Ms McIntyre each gave evidence that Dr Al Muderis raised fundraising with them. This topic is discussed further below: see Fundraising in Part 6, Section 1.

464 Third, Ms Stewart gave evidence that on Dr Al Muderis’ instructions, she was required to write consultation reports. There is an email in evidence supporting her evidence, which is discussed immediately below.

465 Fourth, Ms Stewart gave evidence that she was poorly treated, bullied and belittled by Dr Al Muderis, and she observed him do that to others (including Ms Bosley).

466 There is evidence of an email in February 2016 from Dr Al Muderis reflecting that behaviour: see email at [574] below. Dr Al Muderis described his comment in the email as a “heated moment”. However, that response is problematic. The email related to a patient’s incomplete initial letter, in a context where Dr Al Muderis’ evidence was that he dictates the letters during or after the consultation. Ms Stewart merely expressed the view in the email chain, an understandable one, that she could not complete the letter (which apparently related to a report of a consultation) because she had not attended the consultation. Dr Al Muderis’ response (“Shona should have done this”) presupposes Ms Stewart should have completed the letter, and her questioning of it drew the abuse that he is “sick of these stupid responses”. That response reflects that he perceives Ms Stewart to regularly give “stupid responses”. It is consistent with her evidence that “[it] was very common for Dr Al Muderis to call me stupid or mock me in front of my colleagues whenever I asked a question”.

467 The email contained gratuitous abuse. It reflects a very low tolerance on his part. It speaks of his attitude towards Ms Stewart. With considerable reluctance, Dr Al Muderis ultimately accepted that the comment was inappropriate.

468 Her evidence as to her treatment is also supported by the evidence of Mr Grant, Mr Hernandez and Ms Schaeffer.

469 Ms Schaeffer deposed that she saw Dr Al Muderis say to Ms Stewart words to the effect of: “are you that stupid?”, “this shouldn’t happen” or “you should have known better”. She said that Ms Stewart “looked miserable”. She felt as though Dr Al Muderis “was being flippant and that he pretended as if he was making a joke but really, he was just being mean towards her”.

470 As already discussed, Mr Grant’s evidence was that Dr Al Muderis treated his staff poorly. He further deposed that Dr Al Muderis yelled and abused staff, and “particularly targeted female staff in this regard”. He explained that Dr Al Muderis treated Ms Bosley especially poorly, and “witnessed physical, mental and emotional abuse between” the two. He gave an example of the two “arguing and throwing food at each other” on a business class flight. As previously discussed, Mr Grant is accepted by the applicant to be a witness of credit, whose evidence I accept.

471 Mr Hernandez’s evidence is to the same effect. He deposed that in Australia and in the United States, he “regularly saw Dr Al Muderis scream at [Ms Bosley] and have her in tears”. He would call Ms Bosley “dumb dumb” and disparage her in public. He would also talk down to Ms Stewart. Mr Hernandez described a culture of fear of standing up to Dr Al Muderis, because he “wielded so much power over our income”. Indeed, the asymmetries are self-evident.

472 Dr Al Muderis’ evidence, addressing their evidence in relation to Ms Bosley, is telling. As previously described, Mr Grant said that he witnessed Dr Al Muderis abusing Ms Bosley physically, mentally and emotionally. He said the disputes were always about work, for example, including things he understood her to be doing wrong. Mr Hernandez’s evidence was to a similar effect.

473 In cross-examination, Dr Al Muderis denied he reduced Ms Bosley to tears on several occasions. At one point, he replied “I have a lot of respect to Belinda Bosley and I never belittled her. Actually, we used to banter all the time”. When put to him that there was an occasion where he and Ms Bosley had a fight on a plane which concluded with a loud argument and throwing food, he replied:

We used to banter, we used to have heated discussions. She used to shout at me. I shout at her back. It’s no dissimilar to what happened on the side of the bar table. We are passionate about what we do, and we witness … heated discussions. That’s not belittling. That’s just because we’re passionate about what we do.

474 What Mr Grant described in evidence is not “banter”, and nor is it what occurs in a courtroom. If Dr Al Muderis considers it as such, he fails to appreciate the nature of his conduct. The applicant’s submission that Mr Grant’s evidence “about the alleged food throwing on the plane demonstrates that the incident was frankly trivial” does not properly characterise Mr Grant’s evidence. Dr Al Muderis plainly had the upper hand in the relationship, as he reduced Ms Bosley (and others) to tears. I accept Mr Grant’s evidence. Ms Stewart’s evidence is to the same effect.

475 The applicant referred to several witnesses whom he called who said they had not observed any bullying (including of Ms Stewart or Ms Bosley), and that the work environment was collegiate. Those witnesses work with Dr Al Muderis in different capacities One of the witnesses is Ms Roberts, who, as I found earlier, gave evidence of what she understood she was to say to assist the applicant’s case (e.g. about whether consultations were conducted in the United States). Other witnesses had little or no overlap with Ms Stewart’s employment. I prefer the evidence of Mr Grant and Ms Stewart (which is supported by the email from February 2016 referred to above) as to Dr Al Muderis’ conduct. It is supported by other evidence.

476 The applicant submitted that Ms Stewart is dishonest as to what occurred because she communicated with Dr Al Muderis between 2019 and June 2022 which shows that she thought highly of him (e.g. congratulating him on receiving the 2020 NSW Australian of the Year award). The submission fails to appreciate the complexities of relationships, noting this relationship traversed professional and personal contexts. One may outwardly admire or care for another while hiding resentment or sadness towards them. I do not regard the matters the applicant relies on as undermining her evidence. In comparing her evidence with the communications the applicant relies on, it is apparent she is grappling with the conflicting emotions borne by her experiences. In any event, there is other evidence supporting her evidence.

477 Fifth, Ms Stewart gave evidence that Dr Al Muderis’ patient selection changed over time to include patients who he had previously excluded. This is supported by the evidence of Dr Al Muderis, Dr Doshi, Dr O’Carrigan, Dr Tetsworth and Mr Grant.

478 Dr Al Muderis’ evidence that studies over time “demonstrate” that outcomes for osseointegration patients with certain conditions are not materially different from patients without those conditions is circular and unfounded. He refers to two published peer-reviewed papers (concerning patients with peripheral vascular disease and, separately, a history of smoking) and one unpublished paper (concerning diabetes).

479 The study relating to peripheral vascular disease involving five transtibial osseointegration patients (after 12 months), published on 20 September 2017, is a study he co-authored. Its conclusion expressly limits its findings (citing, inter alia, the small sample size):

… this study showed that osseointegrated implants can be an effective treatment for transtibial amputees with peripheral vascular … Additional evidence is required to confirm the feasibility of implementing osseointegration surgery as standard care for amputees with peripheral vascular disease.

(emphasis added)

480 A plain reading of that conclusion could not be said to “demonstrate” that outcomes for patients with peripheral vascular disease are not materially different than outcomes for patients without the condition. The unpublished study on diabetic patients similarly concludes “17 patients is not large enough to provide definitive understanding”.

481 I note Dr Al Muderis said Ms Ulrich was a good candidate for transtibial osseointegration in March 2016, despite her having disclosed that she has peripheral vascular disease. He performed the surgery in March 2017.

482 As explained elsewhere, it is difficult to see how some criteria could properly change (see e.g. the Patient X and Mr Ford case studies in Part 6, Section 3).

483 Sixth, Ms Stewart gave evidence that Dr Al Muderis would instruct her to ensure Mr Grant would attend clinics on certain days to speak to patients to share his positive experiences. Mr Grant also gave evidence that Dr Al Muderis asked him to attend certain clinics.

484 Seventh, Ms Stewart gave evidence that Dr Al Muderis wanted his clinic to look busy, because it suggests the surgeon is more successful – or at least gives that impression. She said, to that end, Dr Al Muderis wanted to double-book patients, which she maintained in cross-examination when it was put to her that was false.

485 There are two emails in evidence, each authored by Ms Annie Livingstone (Dr Al Muderis’ practice manager) and sent a few days in advance of clinics to be held on 7 July 2016 and 14 March 2017 to the persons who were to conduct those clinics. The emails detailed the list of patient attendees and identified whether they were new patients or review patients. In the case of the former, appointment times were specified. The documents reflect there were multiple double bookings, and in one case a triple booking. For example, for the 7 July 2016 clinic, there were three new patients listed at 8.00 am, two more at 9.00 am, and another two at 9.45 am. The email reflects there were a total of seven new patients, with a possibility of another new patient (awaiting confirmation) and nine review patients (without appointment times).

486 For the 14 March 2017 clinic, there were 12 new patients listed from 8.00 am to 1.00 pm, with two appointment times being double-booked. There were a further 15 review patients listed to attend for review that day (with no appointment time). Mr Warland (a witness in these proceedings) was one of the new patients double-booked for the 11.00 am appointment. Ms Ulrich also saw Dr Al Muderis that day although she is not listed. This evidence is consistent with Ms Stewart’s evidence, and it is proximate to when she worked with Dr Al Muderis. As expanded upon later in these reasons, the scheduling of appointments as demonstrated in those emails (and on Dr Al Muderis’ estimations (as well as his witnesses’ estimations) of the typical number of appointments he would have during those clinic days), means that there is support for the patients’ evidence as to the brevity of some consultations.

487 Against the above context, it is appropriate to address Ms Stewart’s evidence that on occasions she was directed by Dr Al Muderis to forge prescriptions for pain medication for patients. She explained patients would call Dr Al Muderis, and he would ask Ms Stewart (and others) to write a script and fax it to the pharmacists. She said she would do it under his direction.

488 The applicant’s approach to this topic is inconsistent. As the respondents submitted, it was, on the one hand, put to Ms Stewart that she “broke the law” by forging prescriptions but on the other hand, put to her that it was a “complete lie” that he told her to do so. Ms Stewart, when asked if she knew the forgery was illegal at the time, said “I had a feeling that it wasn’t correct, but I was under the direction of Dr Al Muderis, and I was told that it was okay to do it because that’s what he wanted”.

489 The applicant’s closing submission proceeded on the basis that Ms Stewart did forge the prescriptions, as she gave evidence of doing so. The applicant submitted on that basis, and because she betrayed the confidence of her patients by sending Ms Grieve their private medical records without their consent, that “Ms Stewart is a thoroughly dishonest and untrustworthy person and not a witness of credit”. The submission also relied on the fact that Ms Stewart did not disclose this conduct in her application for admission as a solicitor. Ms Stewart’s cross-examination was conducted in a very aggressive manner.

490 Her evidence about the prescription is a statement against her interest, particularly given she is now admitted as a solicitor. She described the circumstances in which this occurred. I accept that evidence. No basis has been advanced for why she would fabricate the evidence. This evidence does not render her a witness who has no credit. As I referred to above, aspects of her evidence were unsatisfactory, but as evident from the discussion above, significant aspects of her evidence are supported by other evidence.

491 The respondents submitted that this evidence about the prescriptions “was an appalling example of Dr Al Muderis pressuring Ms Stewart in the workplace”. I accept that submission.

492 There is no motive advanced by the applicant for Ms Stewart to provide what they allege is fabricated evidence. None is apparent on the evidence.

493 Although in cross-examination the applicant put to Ms Stewart that she spoke up about Dr Al Muderis because she was “excited at the prospect of marshalling a class action to take part in as part of [her] new career as a lawyer”, she denied it, and pointed out she was a criminal defence lawyer, not a class actions lawyer. However, the applicant does not refer to this assertion in his submission, and did not pursue the allegation. In any event, Ms Stewart’s evidence was she admitted to sending emails to about ten patients about a class action when she was a paralegal but stated that she was in no position to rally a class action because she had no relevant experience. She explained that she simply assisted a handful of patients to speak to a class actions lawyer to enable them to get legal advice. She said from the limited inquiries there were issues, and so she abandoned it. It appears the patients’ claims became actions in negligence. In any event, it involves circular reasoning because it presupposes there is evidence to bring a case (i.e. a legal case is only contemplated if there is evidence).

PART 6 — PATIENT CASE STUDIES

Section 1 — General observations

The patients

494 As earlier explained, I am mindful of the frailties of human recollection and the difficulties which affidavits can present. Although it is necessary to consider the evidence of each case study individually, some general observations can be made. Many of these observations are underpinned by the evidence discussed and factual findings I make below in relation to the patient case studies.

495 First, it can readily be accepted that many people have benefited from osseointegration. That said, it is elective surgery. It involves technology which Dr Al Muderis described in cross-examination as in its infancy, which he said confuses a lot of clinicians. The evidence establishes that not everyone is suitable for the procedure. It comes with risks and complications which can be serious and ongoing, as well as severely affecting a person’s health, adversely impacting on the quality of their life.

496 Generally, the patient witnesses had undergone hardship and were vulnerable at the time they consulted Dr Al Muderis. Most had traumatic experiences associated with their injuries, especially the osseointegration patients, with many suffering from related issues, (such as post-traumatic stress disorder (PTSD), other mental health issues, and pain related issues). Dr Al Muderis in his interview with Mr Steinfort recognised as much, describing patients as “severely traumatised, mentally, physically and psychologically”, and that he sees them at a low point in their life. The surgery is therefore often contemplated in circumstances where the potential patient has other health conditions (sometimes very significant ones).

497 For the osseointegration patients, the offer of surgery that would enable them to walk (or with more ease) would be very compelling. Some of the patients gave evidence which reflected their experiences had dramatically influenced their perception of risk. For example, Ms Mattiske described being “desperate to walk again” and “having ‘tunnel vision’ about the operation”. Mr Urquhart had said, “give me just one per cent chance of getting up and walking my daughter … down the aisle when she gets married, I would take that chance 10 times a day.” As referenced earlier at [418], Mr Hernandez recognised the interest and desire that such technology would have on amputees, stating in his proposal letter to Dr Al Muderis that “once amputees see the implant for themselves, they will do whatever it takes to obtain it”. The need for such patients to be properly warned of, and fully appreciate, the risks and complications of the procedure, is especially important. A patient should be put in a position to and given time to properly, and in an informed manner, consider their options. Osseointegration is elective surgery. There is no immediate urgency. The orthopaedic patients were also vulnerable and faced their own challenges, looking for solutions for injuries they had. Many were older persons.

498 In that context, patients were also vulnerable at the time they gave evidence. It was apparent some were suffering physically and emotionally during their time in the witness box.

499 Second, generally the patients have endured many medical appointments, procedures, and surgeries during their lives. The witness’ affidavits in this case were often prepared without the benefit of medical records (the respondents submitted, and the applicant did not challenge that although they had subpoenaed these records, the applicant resisted this process). Cross-examination of the patients is to be considered in that light. A witnesses’ evidence is not necessarily unreliable simply because they are incorrect as to when something occurred or was said. It also does not necessarily follow that because the timing of an event is incorrect, the evidence as to what occurred at the event is unreliable. On the other hand, the patients’ circumstances reflect that they are experienced patients, exposed to many medical professionals, and who may be more aware about medical aspects of their lives than others. In that context, it may readily be accepted that certain aspects of certain interactions with medical professionals could stand out to some patients because of their nature and impact. Many witnesses described events as shocking such that it stuck in their memory. Mr Wynne, for example, defended his recall of an interaction with Dr Al Muderis on the basis that “it was so profoundly shocking … I could see it right now”: see his case study in Part 6, Section 4.

500 All that said, I am very conscious that a patient may be a poor historian on aspects of their history, and care needs to be taken to consider what impact that has on their credibility and the reliability of their evidence, considered in the context of all the evidence. Amongst other things, I have looked to whether there is other evidence and considered how a patient’s evidence stands with other evidence. In doing so I am mindful of the standard of proof, as discussed above in Part 3, Section 1. That said, as will be apparent from my discussion in the patient case studies, much of their evidence is supported by other evidence.

501 Third, also in that context, the cross-examination of the patients generally took events in chronological order, as to each interaction with Dr Al Muderis and others. Often, propositions that certain events occurred were put to a witness without the witness being told their bases. As illustrated below, patients may well have assumed that the basis for the propositions (or questions) were medical notes. The manner of the cross-examination was generally to assert that the event occurred. The nature of the question presupposed the correctness of the propositions contained therein.

502 It was plain that, on occasions, witnesses were only ostensibly accepting propositions put to them. I raised with counsel, on at least one occasion, that it should not be assumed that the witnesses were assenting to the propositions. For example, during Mr Mortimer’s cross-examination I said that:

… some of the answers that have been given in the last while, I do not know whether [Mr Mortimer is] agreeing. He appears not to be agreeing, even though he said the word “right” on various occasions because of the way you’re putting propositions.

503 Similarly, during the cross-examination of Mr Warland, it became apparent as a result of the Court raising the issue, that Mr Warland was saying “yes” to propositions in the sense he was merely “tak[ing] [counsel’s] word for it” (see also Ms Schaeffer below in Part 6, Section 4).

504 Care must be taken in assessing the answers. For those witnesses, the applicant made submissions based on the answers reflecting the witnesses agreed with the propositions put.

505 Fourth, with few exceptions, the patients, their treating doctors and expert witnesses who gave evidence adverse to the applicant were variously accused in cross-examination of lying, giving false evidence, fabricating evidence or dishonesty. Their cross-examination was, at times, in an aggressive manner. Generally, no motive for that alleged conduct was put to witnesses.

506 The applicant, in oral closing submissions, took issue with the respondents’ submission that he had conducted his case in that manner. The respondents’ submission is correct. So much was evident during the hearing in this case.

507 That the applicant may have pulled back in closing submissions from some of the assertions put during the hearing does not alter that. Being accused in cross-examination of such conduct may have impacted on the witnesses giving evidence. It was plain several of the witnesses found it confronting and appeared offended by the allegation. Some medical witnesses were obviously surprised that such an accusation was being made. The applicant’s change of position in relation to some witnesses raises an issue as to the basis of some of the assertions that had been made (although it is unnecessary to address). One assumes it was on instructions.

508 Fifth, related to that was the “concoction” theory the applicant outlined as his case, which is referred to above at [211]. In their written reply the respondents submitted:

When asked by the Court during the course of oral closing submissions to explain Dr Al Muderis’ “concoction” theory, Dr Al Muderis’ senior counsel: (a) limited the submission to an alleged concoction of complaints by Ms Schaeffer, Mr Bruha, Mr Ladouceur, Mr Hernandez, Ms Ulrich, Ms Mattiske, Mr Smith, Mr Wynne, Mrs Todd, Mr Mortimer and Mr Urquhart; (b) withdrew the suggestion that the “concoction” of complaints was part of a conspiracy or scheme between these witnesses; (c) withdrew any attack on the credit of Mr Grant; and (d) could offer no motive on the part of the respondents to participate in a conspiracy to concoct false complaints.

509 Although the applicant made varying allegations of conspiracy and concoction during the hearing and conducted much of his cross-examination accordingly, he did not raise those matters in his written or oral closing submissions. When pressed by the Court as to the nature of the concoction and its participants, the applicant explained that his case was that the patients concocted complaints after their contact with one or more of Mr Hernandez, Ms Stewart, Ms Grieve, the team at The Alfred (being those involved with osseointegration), or Dr Huang. He denied he had advanced a conspiracy theory. He said his case for those witnesses was that their evidence of complaints is a recent invention.

510 In the respondents’ closing submission in chief, they submitted:

It was first suggested that the respondents had assisted patients in concocting messages – a claim that was subsequently withdrawn. It was then suggested that the patients had been turned against Dr Al Muderis and motivated to discredit him – either before or after the matters complained of (different propositions were put at different times), and by a variety of individuals including Mr Hernandez, Dr Huang, Dr Wines, Mr Gray, and the team at The Alfred in Victoria, among various others. None of this found the remotest support in the evidence, and it was not even pursued in cross-examination of Ms Grieve, Mr Steinfort or Ms Clancy.

511 That accurately describes the position put by the applicant during the hearing.

512 The applicant’s final position as articulated before closing submissions was that:

I should have said “concocted complaints” [rather than “concocted messages”] …We allege that the complaints are concocted from … about May 2022 onwards. And that all the complaints that came through from May 2022 were part of a concocted scheme.

(emphasis added)

513 Despite the applicant’s denial in closing submissions of having advanced an allegation of a conspiracy, his submission of the existence of a scheme of which he alleged the respondents were part, plainly fits that description.

514 Notwithstanding the respondents’ submission to the contrary, the applicant has not withdrawn the scheme submission. Rather, the applicant seeks to recast his case in the manner described above.

515 Further, although the applicant put (directly or indirectly) to Ms Ulrich, Mr Bruha, and Mr Ladoucer that they had spoken with Ms Grieve to help Mr Hernandez, it was not explicitly put to them they made up what they said to her (and their evidence) to help him. In relation to other witnesses, it was not suggested to them that they made up their evidence because of any dealings with certain persons. It was not put to any of the respondents that they were party to any scheme. No motive has been suggested for these, or any of the other patient witnesses (except the three above), as to why they would give false evidence. Again, this raises an issue as to the basis of such assertions being made (although it is unnecessary to address).

516 I note that in relation to many of the patients, there appears to be no relevant connection between them. That said, simply because patients may have known, or been friends with others, is not of itself a basis to make the accusations. The applicant mistakes a motive to speak publicly about the experiences that they say have occurred for a motive to lie.

517 As discussed elsewhere, some witnesses have had their osseointegration implant removed (e.g. Mr Urquhart, Mr Mortimer, Mr Haskett, Ms Mattiske and Mr Bruha) and some, before the Publications, sought second opinions (e.g. Mr Urquhart, Ms Todd, Mr Smith, Mr Mortimer, Ms Mooney and Ms Heffernan), complained to Dr Al Muderis directly (e.g. Mr Mortimer, Ms Todd, Mr Haskett, Mr Urquhart and Ms Çalan) and complained to the Health Care Complaints Commission (HCCC) (e.g. Ms Mooney and Ms Heffernan). Two patients had also brought negligence proceedings against him (receiving substantial settlements) (Ms Mooney and Mrs Gollan).

518 The applicant’s submission that the majority of patients did not come forward with any complaints about Dr Al Muderis until after the Publications, also fails to grapple with the fact that although some of the patients may not have formally complained before the Publications, it does not necessarily follow they did not have a complaint (or a basis for one).

519 I will address the witnesses separately, but as a general proposition, as the respondents submitted, the patients are a diverse group of people, coming from diverse locations, being patients (or prospective patients) over many years. All had suffered significant forms of personal hardship. Some were clearly reluctant to appear before the Court at all. They had no reason to come to give evidence other than to tell their stories. No other motive was put to them (apart from the three in relation to Mr Hernandez). They stood to gain nothing by giving evidence, other than saying what had happened to them.

520 Sixth, the applicant’s approach in cross-examination and closing submissions with respect to the patient witnesses’ evidence was, in many respects, simplistic. For example:

(1)    it was put to some patients that they were mobile after Dr Al Muderis’ surgery where they had previously struggled to mobilise or were immobile, to then submit that therefore there was no basis for a patient’s complaint;

(2)    it was put to many patients that they had been on holiday at some time since their surgery with Dr Al Muderis or there were photographs on social media with them smiling (or enjoying themselves) after surgery, such that their evidence of complaints, complications or pain cannot be accepted;

(3)    it was put to some that they had said positive things on social media about Dr Al Muderis to support a submission that therefore any later complaint cannot be accepted; and

(4)    if a patient is happy that they had osseointegration (or have more mobility), it was said they could not have any complaints, and the complaints made are not true. In that context, the applicant repeatedly made submissions that osseointegration surgery for various patients was “wholly successful”, and therefore there is no basis for any complaint (see e.g. Dr Al Muderis’ description of Ms Todd’s surgery being successful at [1832]). I note that it is apparent that Dr Al Muderis regarded the surgery as successful if, for any time, the patient was able to mobilise regardless of any complications they suffered. In his recorded interview with Mr Steinfort, he says:

if you have a patient that has an infection or pus coming out of their stoma, but they are playing soccer and running around with their children and fully active, fully employed and performing their day to day activity, would you call that a complication? I wouldn’t because these patients have their quality of life.

521 These propositions were said to demonstrate the falsity of various patients’ evidence as to their complaints, or criticisms they had as to their dealings with Dr Al Muderis. As a general proposition the reasoning underpinning those submissions is flawed. That said, it is necessary to consider the evidence in relation to each patient witness to assess what, if any, significance or weight attaches to the submission.

522 Other examples include that Dr Al Muderis is at times generous (e.g. by offering patients discounts for surgeries or doing humanitarian work) is not inconsistent with him prioritising his own interests (e.g. money and fame). Similarly, the proposition that he has a busy waiting room is not inconsistent with Dr Al Muderis actively seeking out new patients by promoting his business. These propositions are not mutually exclusive.

523 Seventh, the osseointegration patients’ evidence and interactions with Dr Al Muderis are in a context where he promoted to them that if a person has the procedure with him, they have a connection for life. As explained below, several witnesses gave evidence that Dr Al Muderis said to patients, in effect, that they will be family, and that he would be there for them. Dr Al Muderis took patients out to dinner and socialised with them. Some described him as a friend in a manner that was more than a doctor-patient relationship (which puts the terms of some emails and social media posts in context). Patients put their trust in him. He used patients to promote the surgery to others. When he was in the United States at conferences, patients would be used in promoting his implants and osseointegration in Australia. Patients were dependent on him because of what he had said to them, and as the implants were proprietary (once he began using his implants), this affected the extent they needed him for any issues that arose or parts to be replaced. International patients were especially vulnerable. For example, Ms Ulrich described in re-examination:

I was scared to sever this relationship, because if something went wrong with this, who was going to help me, since USA doctors and surgeons were scared to even touch my leg with this implant in it.

524 Mr Wynne similarly described:

… when I had this [osseointegration] done, I was essentially married to Munjed … he’s the only person I could go to if I needed anything done. There’s no other [doctor] in the world, that I knew of … where I could go to for help. I was, in a sense, stuck with him. … it’s a messed-up situation. Even though … I felt that he was very reckless, I was also stuck with him. … I didn’t get any sort of follow-up with Munjed. … it did feel like that relationship was dangling by a string, that if I wanted to keep the relationship going, I had to try hard … just to be able to ensure that I would get care for this part because without Munjed, I’m stuck. …

… I did feel like I had to keep this relationship going to ensure I still had a doctor to take care of me because, especially when I left Australia, there was no connecting me with a doctor for wound care in America. There was no connection [for] care for my osseo part once I returned to America, and I felt like it was completely all on me to keep this relationship happy and alive …

It was a scary spot to be in.

525 I accept that evidence. These matters can impact a patient’s behaviour towards Dr Al Muderis and their interactions with him. It alters the doctor-patient relationship.

526 Eighth, aligned with that, a patient may accept certain complications of a surgery for a period, particularly where they have confidence in their surgeon and if they are mobile. Being told by your surgeon that what they are experiencing is normal, and everything will be fine may be seen as acceptable, at least for a time. They may regard certain events as normal or usual. Red flags might not be questioned. However, patients’ views of their doctor (or circumstances) may change over time. They may eventually question what is happening. A patient may be worn down by what they have had to deal with from the surgery, continuing over time. Frustration may set in, particularly if they perceive that their problems are not being listened to or addressed. With the benefit of hindsight, events that occurred earlier in the relationship may later be seen in a different light. If something adverse had occurred, that no complaint may have been made about it at the time, does not alter the nature of the event. Assessing whether conduct is negligent is not dependent on there being a complaint about it at the time.

527 Ninth, it can be accepted that a patient may be unhappy about the outcome of a medical procedure and blame the doctor in circumstances where they were not at fault. I am conscious of that in assessing the evidence. However, an unhappy outcome may also have been because of (or contributed to by) the conduct of the surgeon. Conversely, it does not follow that simply because a patient is happy with the fact of having had the surgery, that they can have no complaints about their doctor and the services provided (both before and after surgery).

528 Similarly, the issue is not as simple as the applicant portrays when he repeatedly submitted that because a condition or consequence (e.g. an infection or implant removal) is said to be a known complication, no blame can be attributed to him. As a general proposition it is too broad sweeping and is devoid of context. In addition, the applicant’s submission fails to grapple with the nature of the allegations made in the different cases. Dr Ruff did not agree that simply because something is a known complication (which after all only means an event which has been known to occur) does not mean it is not negligent. I accept that evidence. Each case turns on its own facts.

529 Tenth, although the patients need to be considered individually, that does not mean that their evidence must be viewed in isolation. To the contrary, a witness’ evidence of an experience in one case, depending on its content and reliability, may be relevant to the probability of that experience occurring in other cases. Moreover, although a patient’s evidence needs to be considered (as with all the evidence in relation to their case study), evidence of their entire medical experience (although considered) need not be referred to in these reasons, let alone in a chronological manner. Not all disputes are relevant to the issues to be determined (or otherwise impact on the evidence). I have considered all the evidence and submissions advanced. As referred to above, I have considered whether there is other evidence, and how a witness’ evidence fits with any other relevant evidence. I have considered the impact of the evidence in the assessment of a witness’ credibility and reliability. It must also be remembered that ultimately what needs to be proved is the defence, that is, whether the imputations (or contextual imputations) are substantially true. That relies on a combination of the evidence. It is the probative force of that combined evidence which is to be assessed. The evidence is not to be considered in a piecemeal fashion. Proof of some facts may be affected by the Court’s assessment of other facts. As already referred to, the standard of proof I have applied is in accordance with the principles discussed above.

530 Having made those general observations, I address the patient case studies.

531 The patient case studies are categorised in the following manner. First, prospective patients who consulted Dr Al Muderis but did not proceed with the osseointegration surgery (Ms McIntyre and Mr Grieve): see Section 2. Second, Mr Ford and Patient X, who consulted Dr Al Muderis in 2021, that is, shortly before the Publications: see Section 3. Third, the international patients (the patients from the United States, being Mr Wynne, Ms Ulrich, Mr Bruha, Ms Schaeffer, Ms Koolhoven and Mr Ladouceur (who also did not proceed with the surgery) and from Turkey, Ms Çalan): see Section 4. Fourth, the Cambodian patients (Ms Eang and Mr Pril): see Section 5. Fifth, the domestic patients, upper limb osseointegration (Mr Mortimer and Mr Haskett): see Section 6; and lower limb osseointegration (Mr Urquhart, Mr Smith, Ms Mattiske, Ms Todd, Mr Warland, Mr Mailler, and Ms Rochford): see Section 7. Finally, other domestic orthopaedic patients (Ms Mooney, Mrs Gollan, Ms Heffernan, Ms Young, Ms Brandon, Ms Hutton, Mr Wright, Ms Slater, Ms Jones-Baldwin, Mr Rahiman and Mr Marlborough): see Section 8.

532 As will be apparent, I commence with a consideration of patient case studies that, with limited exception, were not referred to in the Publications. This, in large part involves patients (where they were called) who were not ultimately challenged in the same manner as those who were the subject of the Publications.

533 Having considered the case studies, I return to consider the stings from the Publications (see Part 7), which will bring together the evidence discussed in these patient case studies.

534 I note at the outset that there are four main case studies addressed in respect to the orthopaedic patients (Ms Mooney, Mrs Gollan, Ms Heffernan and Ms Young). Some other patient case studies in relation to the orthopaedic patients are dealt with in less detail as the issues in their cases are more confined. In those instances, their cases would be insufficient by themselves to establish the substantial truth of the stings, without being satisfied in respect to at least some of the osseointegration cases. These cases do not relate to any persons who are the subject of the Publications.

535 I note that in their Amended Defence the respondents, after referring to a patient, in most instances (but not all), alleged negligence by Dr Al Muderis because of matters, inter alia, his failure to adequately assess the patient, the patient was not a suitable candidate for surgery, his failure to adequately advise of the risks and complications associated with the surgery, and his failure to provide post operative care. I generally address what I have been satisfied of in respect to such allegations at the conclusion of my consideration of each patient, if I had not already done so during my analysis in the case study.

536 Before addressing those named patients individually, it is appropriate to first refer to some general topics and observations which are relevant to the consideration of the evidence in respect to the patient case studies.

Consultation reports

537 Given the applicant’s reliance on medical records, it is appropriate at this stage to address aspects of those documents. The primary focus was on the reports of consultations Dr Al Muderis had with patients. An issue arose as to the reliability of those produced by his practice.

538 Any discussion as to the contents of the consultation reports is in a context where witnesses from LRC said it has a practice of forwarding the reports to both the referring doctor and the patient or prospective patient. Dr O’Carrigan and Dr Alttahir gave evidence that this practice occurred despite there being no industry standard to provide the patient with the reports. However, once it is accepted that providing the reports to prospective patients is a standard practice at the clinic, but not an industry standard, this does not assist the applicant or overcome any deficiencies in the reports. To the contrary, that the reports were prepared in that context is the backdrop against which the reports are to be assessed. That is so, irrespective of whether they were sent to the patients on each occasion.

539 Dr O’Carrigan explained that the consultation report:

is an executive summary of … the consultation. … You have a complex amount of information that needs to be assimilated and crystallised for the patient’s benefit, as well as the surgeon’s benefit, as well as the referring doctor’s benefit, so that you have a clear understanding of what the clinical problem is and the treatment that can be possibly … provided to the patient.

540 Dr O’Carrigan accepted that consultation reports: allow patients to reflect on what had been said during the appointment; inform a patient’s referring doctor of what was discussed, such that they can offer the patient assistance in understanding their options, the risks, and any available alternatives; and ensure that the clinic has a record of what occurred. Dr Doshi gave evidence to a similar effect. Both doctors accepted that it is part of a surgeon’s duty to ensure that consultation reports are comprehensive and accurate.

541 It was generally accepted that it would be significant if a consultation report had omitted or misstated something material. Dr O’Carrigan explained a consultation report is “a legal document”, and therefore it is “very important to make it as accurate as possible”. It was also generally accepted that it was important that the report reflect the discussion of the risks with the patient.

542 Aspects of Dr Al Muderis’ and Dr Alttahir’s evidence on the consultation reports differed significantly from their peers. I return to their evidence below. The evidence of Dr Al Muderis is particularly problematic on this topic, and it conflicts with the evidence of others in his team (and the content of the reports themselves).

543 The applicant described propositions accepted by Dr Doshi and Dr O’Carrigan in cross-examination as to the degree of detail expected in consultation reports as “absurd”. He highlighted Dr Alttahir’s evidence that what mattered was that the consultation was comprehensive, not the report. He submitted that Dr Alttahir’s description of the purpose of the report as a summary of the pertinent points of the consultation, not a transcript inclusive of every detail, was more realistic. However, Dr Doshi and Dr O’Carrigan did not suggest that a report should be as detailed as a transcript.

544 The applicant, relying on the evidence of Dr Alttahir, and in contrast to the evidence of Dr Doshi and Dr O’Carrigan, submitted that the primary purpose of the report is to remind the doctor of pertinent points of the consultation, so they remember next time they see the patient. It was submitted that Dr Alttahir’s evidence is borne out by consultation reports prepared by other doctors, citing Dr Matthew Lyons’ and Dr Richard Carey-Smith’s reports as examples. He submitted that it would be otiose for a surgeon to record standard advice or standard procedures mechanically in every report and unnecessary for such standard processes to be written in the report in order for the surgeon to be able to remember it. That description of the purpose of consultation reports is unduly narrow.

545 It may readily be accepted that the content of consultation reports and the degree of detail varies between doctors, within reasonable bounds. Yet, in this case, the reports are sent to patients (or prospective patients) and their referring doctors. Critically, the reports’ contents (particularly in relation to the first consultation) are also directed to the patient and, given the reports’ terms, are designed to promote osseointegration surgery to the patient: see below. Relying on the contents of reports prepared by other doctors in other circumstances does not assist the applicant.

546 It may also be accepted that consultation reports benefit the doctor by recording what occurred at the consultation. However, the applicant’s submission that these reports are not for the patient’s benefit cannot be accepted, given the context in which these reports were prepared and used. The evidence of Dr O’Carrigan and Dr Doshi is that the consultation reports are also for the patient’s benefit. Dr Alttahir also accepts that as a purpose. Again, one only need to look at the contents of the reports in evidence in relation to the initial consultations (as noted below) to see that the applicant’s submission is not correct. Moreover, even if the report is for the doctor, and its primary purpose is as the applicant describes, that does not preclude the consequences of sending it to their patient and referring doctor. A consultation report should not be sent to those parties recommending highly invasive elective surgery be undertaken if that report is inaccurate or misleading. Even Dr Alttahir gave evidence it should contain “the pertinent points of the consultation”. Even if only a summary, it should be accurate.

547 That the reports are also sent to the patient’s referring doctors, often their GP, adds to the importance of accuracy. The referring doctor is not present at the clinic consultations. As Dr O’Carrigan accepted, the reports inform a patient’s referring doctor of what was discussed, such that they can offer the patient assistance in understanding their options, the risks, and any available alternatives. The applicant’s case is that the reports do not need to be comprehensive, and that it is acceptable that he and his team omit details from the reports which the patients are told orally. For example, although many reports record that the patient’s risk of infection is low (or relatively low), the patient is (on Dr Al Muderis’ evidence) warned orally that infection is inevitable. If that occurs, that practice is apt to mislead a referring doctor and the patient in turn. In discussing the surgery with their GP, it cannot be expected that a patient will supplement the report with what was said orally at the clinic, particularly in so far as what was discussed and what is recorded in the report are ostensibly inconsistent. A patient is entitled to accurate medical records.

548 Although I will address Dr Al Muderis’ consultation reports in the case studies as they relate to each patient, there are some common features which appear in many of the reports. Most of the reports of the initial consultations in relation to osseointegration appear to have a format, with some pro forma content.

549 Against that background, at the outset, it is appropriate to make several observations which impact on the reliance that can be placed on the reports.

550 First, of the reports of patients’ initial consultations in evidence, nearly all are formulaic. Some of the initial consultation reports in evidence, include the statement:

The team and I interviewed and discussed thoroughly with [the patient] the advantages and disadvantages of [the procedure] and explained the process of the operation including its complications like:

1. Death

2. Septicemia

3. Loss of rest of [limb]

4. Need for Revision of implant

5. Conversion back to socket prosthesis

6. Need for Multiple debridements

7. Need for Parentral antibiotics

8. Need for Oral antibiotics

(e.g. Ms Koolhoven, Mr Wynne, Mr Warland, Mr Haskett, Ms Ulrich, Ms McIntyre, Ms Schaeffer and Ms Mattiske).

551 However, the list is typically followed by:

So far we have performed over [X] osseointegration cases and it has been shown clearly that functional capacity of all our cases has increased dramatically with a high statistical significance, furthermore complication rate has been extremely low and last but not least cost effectiveness has been high especially considering that a significant number of our patients have returned to the workforce after being unemployed for several years.

552 The stated number of osseointegration cases performed increases over time in the reports.

553 The reports then frequently state:

[The patient] does understand the risk of infection associated with this surgery, however we regard [the patient] as relatively low risk. [The patient’s] procedure would be very standard.

554 They typically conclude with the statement:

Due to the increasing challenges [the patient is experiencing], it is my [Dr Al Muderis’] opinion and I do believe that it is necessary for this procedure and would expect to see an improvement in [the patient’s] mobility. Given that osseointegration surgery is acceptable worldwide, it is reasonable to offer [the patient] this option to improve [their] quality of life.

555 Even if a list of risks is included in the report (including a possible need for parenteral or oral antibiotics), it is followed by statements emphasising the success of the surgery, that the complication rate has been “extremely low” and infection is a “relatively low risk” for the patient.

556 I note that some consultation reports simply include the pro forma statement regarding the “relatively low risk” of infection (recited above), but otherwise refer to no other risks (e.g. Ms Todd, Mr Mailler and Mr Mortimer (with the exception of Mr Mortimer, who, as an upper-limb patient, is also advised he faces a lower risk of infection than lower-limb patients)). Ms Çalan’s report contains no reference to risks.

557 The terms of these reports differ considerably from what Dr Al Muderis deposes as to what he tells each patient. His evidence is:

I … specifically discuss risk and potential complications [with patients]. The first thing I tell them about risk is “you could die”. I then tell them that:

(a)“infection is a matter of when, not if”, and that there is a 100% chance that the patient will develop an infection at some stage - I tell patients “you may get it while you are in hospital, or in a month, a year, ten years or 100 years”;

(b) they could be left in a vegetative state from severe infection;

(c) they could lose the rest of their leg;

(d) they could have an infection so severe that they need intravenous antibiotics for a prolonged period;

(e) they could have an infection that may require oral antibiotics for the rest of their life;

(f) the wound may require debridement or washing out;

(g) revisional surgery might be required;

(h) multiple hospital admissions or visits may be necessary;

(i) the patient might develop hypergranulation which needs to be treated with the application of silver nitrate or surgery … ;

(j) the patient will be left with a permanent stoma, which will be ugly … ;

(k) there will be some amount of drainage from the stoma and it might smell.

I explain to patients that “This is not a pain-relieving procedure. This procedure is about mobility”.

558 I note that this is disputed by many of the patient witnesses, which is addressed elsewhere.

559 There is one report in evidence, which relates to Mr Bruha, in which the risks and complications are described in greater detail, and also varies from what is included in the formulaic reports, particularly in relation to infection:

I advised Chris that the infection risk is extremely high. It is 100% in every patient but whether he will get it immediately after the surgery or he would get it a year or two after the surgery is the question. He may get it ten years after the surgery. The risk of infection in the literature is between 34-55%, however in my opinion whenever I advise a patient regarding osseointegration, I inform them that the risk of infection is 100% for them considering that there is a piece of metal sticking out of the skin. Infection risk is dramatic with osseointegration surgery and he may lose his leg above the knee as a result of that. He may need multiple debridements, he may need removal of the implant and he may need to have IV antibiotics or oral antibiotics for a prolonged period. My advice is that self-care and hygiene is paramount. There is a risk of granulation tissue, especially activity related. If he does a high level of activity then granulation tissue will be higher. We have not had any transtibial osseointegration that has fractures but periprosthetic fracture can happen and it is more often with transfemoral osseointegration. Other risks associated with this surgery are clots in the leg, clots in the lung and other complications with general anaesthesia including death, neurovascular risk, strokes, heart attacks and others.

560 There is no evidence explaining difference between this report, and each of the others referred to above. As addressed further below, the applicant’s submission on this topic does not provide a satisfactory reason in the context of the evidence: see Mr Bruha’s case study in Part 6 Section 4.

561 Indeed, the formulaic reports generally reflect a very positive outlook for the patient. They downplay the risks and promote the benefits of the surgery, encouraging the prospective patient to agree to the surgery. That the reports generally portray this picture affects their reliability, including as an accurate summary of what occurred at each consultation. Many of the first consultation reports in evidence state, inter alia:

(1)    Dr Al Muderis has performed many osseointegration surgeries, such that he is very experienced;

(2)    in all of his cases, the functional capacity of the patient has increased;

(3)    the complication rate has been extremely low;

(4)    cost effectiveness has been high;

(5)    patients have returned to the workforce after several years of unemployment;

(6)    the surgery has world-wide acceptance; and

(7)    the particular patient:

(a)    understands the risk of infection, but is at a relatively low risk;

(b)    would have a very standard procedure;

(c)    is experiencing challenges which are increasing;

(d)    would expect to see an improvement in their mobility and quality of life; and

(e)    the surgery is necessary.

562 Pausing there. As can be seen from the passage recited typically included in the reports at [554], the applicant generally referred to the surgery as being “necessary” for the patient. This is an elective surgery. As Dr Doshi accepted in cross-examination, it would be wrong to tell a patient that it is necessary to have osseointegration surgery. Dr O’Carrigan also accepted as much.

563 Second, the formulaic reports’ description of infection discords with what Dr Al Muderis purports to tell patients orally. Although those reports generally describe infection as “relatively low risk” and the complication rate of surgery as “extremely low”, the applicant’s evidence was that he would tell prospective patients orally that “infection is a matter of when, not if”, with there being a “100% chance” that the patient will develop an infection at some stage. I note that, at times, the evidence is that Dr Al Muderis tells patients that the “risk of infection is 100%”. Read in context, when he describes infection as having a “100% chance” or a “100% risk” in his discussions with patients, he uses the terms synonymously to convey that infection is inevitable.

564 That discord is problematic. On the one hand, if he orally warns prospective patients that infection is inevitable, an issue arises as to why the reports generally omit so much but otherwise describe infection as “relatively low risk” and complication rates as “extremely low”, particularly given that they are provided to the referring doctor and patient. The import of those descriptions (and the omission) is that developing an infection is not inevitable. As Dr O’Carrigan accepted, if a surgeon had told a patient that there was a 100% risk of infection but wrote in the consultation report that the patient was regarded as having a relatively low risk of infection, that report would be inaccurate. So much is self-evident.

565 On the other hand, if Dr Al Muderis only told the prospective patients there was a “low risk” of infection, as is generally reflected by the reports in evidence, an issue arises as to why that is so if he is of the view that infection is inevitable. Much of the patients’ evidence reflects that Dr Al Muderis did not orally convey that infection was inevitable. Many patients gave evidence that he downplayed the risk of infection, including that they were told there was a low risk of infection which could be dealt with by antibiotics. That the reports describe infection as low risk is consistent with that evidence.

566 The applicant’s closing submissions on this topic were unsatisfactory and cannot be accepted.

567 The reports per se do not explain what is meant by a “low risk” (or “relatively low risk”) of infection. The applicant submitted that the reference to low risk of infection relates to serious infection. He also submitted that as the report is only a summary of pertinent points, there is no reason to presuppose, because a report says that “we regard the patient as relatively low risk”, that represents the totality of what the patient was told. He pointed to Ms Stewart’s evidence:

Dr Al Muderis would explain to patients that there [were] three levels of infection risk – “mild”, “moderate” and “severe”. He explained that “Mild” involved superficial skin infection which would have symptoms such as redness, pain and oozing. He told patients that would usually be treated with antibiotics. He explained that “moderate” would be more serious and might require IV antibiotics and hospitalisation. He explained that “severe” related to an infection in the bone that could in very rare circumstances result in the implant removed and the patient going back to socket prosthesis.

568 However, a plain reading of the reports does not support the submission that “low risk” refers to “low risk of serious infection”. Leaving aside the issue as to what patients were told (which in respect to some patients is in dispute), the submission that the patient would have understood it that way because they were told of different types of infection in the consultation cannot overcome the plain terms of the report. Given it was intended to be sent to patients and their referring doctors, such a proposition would have been expected to be clearly stated.

569 In that context, nor can the applicant’s submission be accepted that, given the primary purpose of the report was to remind the doctor of what happened, it did not need to include the doctors’ standard speech (i.e. “it’s not if, but when, a patient would have an infection”).

570 In his written submissions in reply, the applicant’s position changed, contending that the phrase “relatively low risk” is to be interpreted as a reference to the patient’s position relative to other patients. That also does not assist, as it does not address what is meant by “low risk”, which is not addressed in the report. Further, on the applicant’s evidence, infection is inevitable.

571 Either way the reports’ description of infection reflects adversely on the applicant. If a patient is told infection is inevitable, but the statement that there is a “relatively low risk” of infection is recorded in the report, the compelling inference is that it is to downplay the risks of the procedure and therefore encourage patients to agree to undertake the surgery. On the other hand, if the applicant did not say infection was inevitable, but rather said there was a relatively low risk, he is knowingly giving incorrect information (which also downplays the risks of the surgery given his evidence). As reflected in Mr Bruha’s letter, he believes “the risk of infection is 100%” and that the “[i]nfection risk” of osseointegration surgery is “dramatic”, citing potential consequences including further amputation and loss of implant. This also raises issues with the credibility and reliability of his and his witnesses’ evidence as to their interactions with the patients (or prospective patients).

572 Third, there is a standard template used in relation to osseointegration reports, with some aspects of the reports being cut and pasted. So much was accepted by Dr Al Muderis when questioned about Mrs Gollan’s report. Dr Al Muderis gave evidence he dictated reports, which leaves open the question if the report is not seen by Dr Al Muderis before it is sent out (which typically is stated on the reports), and there is cut and paste, who checks that it accurately reflects what occurred? There is no evidence as to what is in the template. Dr Al Muderis said he dictated a report while seeing a patient or immediately after, but some he did at the end of the day or later. This is in a context where he was typically seeing 30 or more patients on a clinic day.

573 I note that, although Dr Al Muderis generally produced reports for consultations, there are no reports for some consultations despite him giving evidence of the consultation occurring, or the documentary evidence otherwise establishing that they occurred (e.g. Mr Urquhart’s first consultation, Mr Smith’s first and second consultations, and a pre-operative consultation of Mr Haskett). That is, out of the 20 osseointegration case studies (not including the Cambodian patients), pre-operative consultation reports were not produced for three patients. It is difficult to understand how such reports could be missing for this number of patients if, as he gave evidence, he dictated the reports as a matter of practice, proximate to the consultation. In the circumstances, the obvious inference is that there are no reports for these meetings.

574 Fourth, as already discussed, Ms Stewart gave evidence that she often wrote consultation reports for Dr Al Muderis. An email exchange discussing the drafting of a consultation letter for a patient in the UK is informative. It commences with an email from Dr Al Muderis’ practice manager, Ms Livingstone:

Ms Livingstone: Hey, The initial letter in [the patient’s] file isn’t complete, that needs to be done before I print everything

Ms Stewart: Munjed did the consult in the UK. It needs to be completed by him

Ms Livingston: Hey Munjed, Need to print [the patient’s] entire file for tomorrow as its his last appointment, are you able to dictate an initial letter before he leaves? …

Dr Al Muderis: Shona should have done this

Ms Stewart: I wasn’t present with his initial appointment

Dr Al Muderis: Shona Since when it matters if you were there or not. You did the COR I am sick of these stupid responses

Ms Stewart: The letter in draft form in [the patient’s] file that is not in the clinic letter format I normally do. I do not know what you would add or confirm in it from the uk clinic

575 The terms of the exchange support Ms Stewart’s evidence. Ms Livingstone’s request that Dr Al Muderis “dictate an initial letter” evinces that it is not yet drafted. Dr Al Muderis’ reply that “Shona should have done this” reflects an expectation that she would draft the letter, and that he would not. Ms Stewart’s reply (“I wasn’t present …”) reflects her understanding of that expectation, at least when present at the consultations (I note Ms Stewart’s evidence is that the COR (a database in which diagnostic measurements for patients is maintained) “never goes in the letter”). In that context, that Dr Al Muderis writes that she “should have done this” irrespective of whether she was “there or not”, and that Ms Stewart writes that the letter “is not in the … format I normally do”, suggests Ms Stewart is habitually involved in drafting the reports.

576 That is consistent with Ms Stewart’s evidence. The following exchange occurred in Ms Stewart’s cross-examination:

Ms Chrysanthou:     You - - -?

Ms Stewart:    I was – I was asked to write the reports after osteointegration clinic days.

Ms Chrysanthou:    Dr Al Muderis, or one of the other doctors or fellows, dictated the reports?

Ms Stewart:    No, I also dictated the reports, and there would be – there would be emails to the – the lady that did the – that did the reports up from the Dictaphone.

Ms Chrysanthou:    And you weren’t asked to write up reports and interpret x-rays, were you?

Ms Stewart:    Yes, I was. That was part of the template of – of the report. I struggled with this so much, because I didn’t have the qualifications or the knowledge to be able to provide in these reports.

Ms Chrysanthou:    That’s true?

Ms Stewart:    And I would ask for assistance to be able to do this, and I was met with so much resistance.

Ms Chrysanthou:    You didn’t have the qualifications to do it; you agree?

Ms Stewart:    No, that’s right. And I – I had to get a lot of help. And the lady that did the reports struggled with them, because the – the reports were late because I had to basically get so much help with them to be able to provide what was accurate and true in the report.

Ms Chrysanthou:    You weren’t asked to write the reports?

Ms Stewart:    I was asked to write the reports.

Ms Chrysanthou:    And you didn’t regularly write them?

Ms Stewart:    I did regularly write them.

577 I note that several of the consultation reports in evidence record Ms Stewart as present at the consultation (e.g. Mr Warland, Ms Mattiske, Mr Urquhart, Ms Ulrich and Ms Schaeffer).

578 The suggestion in cross-examination that she was not being asked to complete the consultation report (which she rejected), is not borne out by the email exchange.

579 I note that, if Dr Al Muderis is in fact delegating the drafting of some the reports, this email raises a question as to why he is doing so to staff who are not present at the appointments.

580 Fifth, some of the pro forma elements of the initial consultation reports in this case, are questionable. As recited above, the reports generally refer to the number of osseointegration surgeries Dr Al Muderis has performed, which is used to explain that “it has been shown clearly that functional capacity of all our cases has increased dramatically” (emphasis added). Yet many (if not all) the reports in evidence are provided in circumstances where patients’ functional capacity had not “increased dramatically” (e.g. Ms Todd) or where some patients have had their implant removed (e.g. Mr Mortimer). In that context it is difficult to understand how that statement could be accurate.

581 In the pro forma reports, the procedure is also referred to as “standard” which, given the patients’ individual circumstances and surgeries, could not properly describe each patient’s situation. For example, the upper-limb surgeries of Mr Mortimer and Mr Haskett were not surgeries Dr Al Muderis commonly performed. Mr Mortimer must have been one of Dr Al Muderis’ first upper-limb patients, which hardly makes it a standard procedure. As explained below, the same could be said for Ms Mattiske’s surgery (see her case study in Part 6, Section 7 below).

582 Further, the reports refer to a worldwide acceptance of the procedure, in circumstances where it was not approved by the United States Food and Drug Administration (FDA) at the time of these reports.

583 In Mr Wynne’s case, his initial report refers to a “thorough discussion amongst the team”, despite the only persons present at that consultation being Dr Al Muderis and Ms Roberts, and they accepted they were the “team” referred to.

584 Many of the reports state:

[The patient] individually met with other patients who are at various stages post-operatively as well as patients who are contemplating the procedure, all of who were able to share their experience and discuss the pros and cons of such a procedure. This is a vital part of the osseointegration clinic protocol due to the complexity of the process.

585 In cross-examination, when pressed as to the accuracy of that occurring in each case, Dr Al Muderis said that he knew it was correct in relation to “every single patient” because “I go out to the waiting room all the time and I speak to patients and I introduce patient to each other”. Moreover, that passage appeared in relation to Mrs Gollan’s consultation, a non-osseointegration patient. Her letter also stated she had met with members of the Osseointegration Group of Australia, when she did not. On 13 July 2017, Mrs Gollan was sent a letter for a follow-up consultation at the osseointegration clinic, with all the details for her attendance at the clinic, including that she will meet with other osseointegration patients. Again, this is incorrect. A similar letter was sent to her on 1 November 2017. This was obviously a cut and paste from a pro forma template, which plainly did not reflect what occurred. The error was perpetuated on many occasions. There are other pro forma statements in reports which could not be correct. For example, Mr Mortimer doing the six-minute walk test when he was an upper-arm patient.

586 Ms McIntyre’s report is illustrative of the unreliability of consultation reports. Her report contains the standard template contents recited in the first observation above. Ms McIntyre’s evidence (concerning a different risk to infection) is also illustrative of how telling patients one thing orally, but another in the report (recalling it is sent to them), can mislead the patient:

I don’t understand why Al Muderis said [in the consultation report] the complication rate had been “extremely low” when he told me [orally] there was a one in ten chance the surgery wouldn’t be successful. That seemed contradictory to me.

587 Ms McIntyre also gave evidence that Dr Al Muderis told her that there was a higher risk of infection in her case because of her work environment and lifestyle. She pointed out in evidence that in the consultation report she and her doctor received, the risk of infection associated with surgery in her case is described as relatively low risk. As explained below in her case study (see Part 6, Section 2), I accept her evidence of the events.

588 Sixth, in the above context, some patients also took issue with the content of the reports accurately reflecting what they discussed with Dr Al Muderis. For example, Mr Mortimer’s report records that he “has expressed that his functional level has declined”. When it was put to him in cross-examination that he said that, he replied, “… that’s so strange. No, it was never declining. … I wanted to improve and do more but it was not declining, no. So I don’t know why they said that.” Mr Grieve’s evidence was that the report was not an accurate reflection of his consultation with Dr Al Muderis: see his case study below in Part 6, Section 2. Ms McIntyre also highlighted several errors in her report: see case study below.

589 The applicant submitted that there were passages of cross-examination of various patients where the substance of a report was put to the patient and the patient agreed or disagreed with it. He submitted these references show that the substance of the reports was regularly corroborated by, or consistent with, other evidence or not disputed by the patients when it was put to them. I will address this when considering the patients. Suffice to say at this stage, on occasions where there is a submission that the substance of a report is put and agreed to by the patient, the submission generally is not borne out by the evidence. I will mention two patients briefly. The submission in relation to Mr Mortimer’s answers in cross-examination being an acceptance of the substance of the consultation report of 25 February 2017, is not supported by the evidence: see [1387]. Similarly, the submission in relation to Mr Bruha that “[i]n cross-examination, when the substance of Dr Al Muderis’s consultation report was put to him, he agreed with effectively all of it, and the Court would therefore accept that the report is an accurate summary of the consultation”, is not supported. Much of the substance was not put to him: see [1020].

590 Moreover, the whole premise of the applicant’s submission about the reports is that they are only a summary and do not reflect the totality of what was said. Further, care needs to be taken with the applicant’s submission that a patient in cross-examination (e.g. Mr Bruha) agreed with the substance of a consultation report (and therefore what occurred at the consultation). To take an example. It was put that Mr Mortimer agreed that in the February 2017 consultation, he was told by Dr Al Muderis that his issues with mobility were caused by rubbing due to tissue shrinkage. However, it does not necessarily follow that that was the cause of his condition. In relation to Mr Mortimer, Dr Al Muderis later opined in a consultation report dated 31 October 2017 that “[f]or Shane we feel as though he is actually doing quite well with his implant”, a statement which, for the reasons given below, was not correct: see his case study in Part 6, Section 6).

591 Seventh, it is appropriate at this juncture to refer to the letter Dr Al Muderis wrote to Ms Mooney’s referring doctor reporting his treatment of her. Ms Mooney had two surgeries with Dr Al Muderis, the second being revision surgery. In the letter dated 21 April 2011 to her GP, Dr Louisa Ahmed, Dr Al Muderis said in the first paragraph:

[Ms Mooney] was seen by one of our experienced orthopaedic surgeons, Dr Ali Gursel, who then referred her to me due to the complexity of her injury to manage her tibial plateau and tibial shaft fracture. I attended to her with multiple surgeries. The first stage was to stabilize the fracture by plate and screws and then the second stage was to permanently fix the fracture with an intramedullary nail and bone grafting to the tibial plateau.

592 As explained further elsewhere, this statement is incorrect. During closing submissions, the applicant accepted that this statement was a mistake. It is, considered in context, not simply a case of not being “well drafted”, as suggested by the applicant.

593 This impression of what occurred is perpetuated further in a letter to Dr Ahmed dated 14 July 2011:

Her injury was so extensive that I performed two surgeries the first being to stabilise her fracture of the tibial plateau and shaft with a plate and screws and second surgery to remove Leah’s plate and screws before inserting an intramedullary nail.

594 This is misleading, and deliberately so. It creates the impression that it was preplanned to have two surgeries, as opposed to the second surgery being a revision surgery. Although Ms Mooney may have informed Dr Ahmed otherwise, that would have been inconsistent with the written document before Dr Ahmed.

595 I note also in relation to Ms Mooney, that the drill bit broke off in her knee. There is no reference to the drill bit being left in Ms Mooney’s leg in the operation report. This is discussed in considering Ms Mooney’s case study: see Part 6, Section 8.

596 Contrary to the applicant’s contention, I am not satisfied that the consultation reports constitute a reliable body of evidence. The above provides some examples reflecting why that is so (others are evident in consideration of the patient case studies below). The reports in evidence span many years. Moreover, although inaccuracies in a report or document may exist and may be unknowing, the description of the reports being a reliable body of evidence cannot be applied to many of the examples given above. The reports appear to favour a result that the prospective patient is suitable for the surgery or that it is necessary (or otherwise favourably portray the patient’s situation). It may be accepted that some of the inaccuracies may be a result of oversight. Given the nature of the inaccuracies, it may be only that Dr Al Muderis was not listening or paying attention to what the patient was saying. Some appear to be a matter of a conscious choice (e.g. promoting the surgery in a positive manner, portraying the surgery as necessary, or to explain favourably why surgeries had occurred, (e.g. Ms Mooney)). Regardless of the reasons for the inaccuracies or misleading statements, the consequence is that it necessarily affects the reliability of the reports and generally impedes the ability to simply accept them at face value. Their assessment may be impacted by considerations including the topic on which they are relied, how it fits with other evidence in the case study, and whether it is controversial or corroborated. That said, the individual case studies must be considered in the context of all the evidence. The relevant reports are considered in addressing each of the patient case studies.

Standard practice – application

597 I have addressed the principles in relation to relying on evidence of standard practice above. As explained there, the question of whether standard practice evidence is to be preferred, depends upon the specific nature and quality of the evidence that is given in a particular case. That is, attention must first be directed to what the standard practice relied on is said to be, and its content (e.g. there could be a standard practice that something is done, but not how it is done).

598 As earlier referred to, the applicant devoted one section of his written closing submissions to the topic of his standard practice. I note that the submission addresses evidence on the topics of the booking processes and arrival at Dr Al Muderis’ rooms, assessments by Dr Al Muderis and other specialists, discussion of risks and potential complications, consultation reports, post consultation procedures, procedures on the day of surgery and hospital care, and rehabilitation and post-operative care. Some care needs to be taken in considering the submission. Although it may be accepted that there were some standard practices, what they were, what they entailed, and the frequency with which they were applied, is in issue. The applicant’s submission contains many generalised statements, and some of the evidence relied on is insufficient to support the propositions put. To provide just two examples, in relation to aftercare. First, for interstate patients, the submission as to the practice is that they follow the same regime as local patients. Mr Mortimer’s evidence described below in Part 6, Section 6, does not accord with that (e.g. his experience after being released from hospital post-surgery and returning interstate). Second, as to the international patients, the submission is that when they return to their home countries the patients are referred to local specialists for any immediate treatment concerns. The evidence relied on in support of the submission is primarily Ms Roberts’ affidavit evidence, and an aspect of Dr Al Muderis’ evidence in chief. The evidence is inconsistent, as at the passage of Dr Al Muderis’ evidence relied on, he said the standard protocol was that once the patient returned home, he would consult with them on a regular basis, and if they needed any help, he would refer them to a local clinician in the area (this evidence being given in respect to Ms Çalan). As will be apparent from the patient case studies, neither what is said by Ms Roberts to be the practice for post-operative care, nor what Dr Al Muderis described in relation to Ms Çalan, occurred in relation to the international patients who gave evidence: see Part 6, Section 4.

599 The applicant emphasised that the evidence of standard practices included Dr Al Muderis himself, and “came from no fewer than 15 sources, covering a spectrum of roles within the practice”, referring to Drs Tetsworth, O’Carrigan, Stoita, Alttahir, Doshi, Al-Jawazneh, Basten, Haidary and others, being Mr Laux, Ms Geada, Ms Dean, Ms Moti, Ms Roberts, and Ms Harris. Those witnesses did give evidence as to standard practices on varying topics, at various times and to varying degrees. Some of the affidavits are sparse and can only cover a limited time (e.g. reflecting their period of working with Dr Al Muderis). I have considered their evidence.

600 The aspect that received the most focus, was what was said to be a standard practice for discussing the risks and complications of osseointegration surgery with patients.

601 To illustrate the caution needed, and the need to focus on the evidence, it is sufficient to refer to the applicant’s submission (made at the outset on this topic) that “[t]hroughout the relevant period, the website [being Dr Al Muderis’ website to which patients were directed to] contained information about Dr Al Muderis, the procedure, and the risks” The reference to support that submission is the affidavit of Ms Roberts, which itself refers to exhibits.

602 However, a consideration of that evidence, and the exhibits referred to reflects that any risks referred to were only acknowledged in a limited way, and the websites form part of the basis of the respondents’ claim that they contained misleading information (which I accept as established). As referred to elsewhere, the websites as at 2023 still stated that the risk of infection is “very low”. I note also that, in the context of directing patients to preliminary information, no reference is made in this submission to the brochures, which as I find elsewhere, suffer from the same defects: see the Brochures – misleading statements in Part 6, Section 1 below.

603 The applicant submitted that while in the waiting room for their consultation, the patient also “had the opportunity … to read written information about the surgery, such as the Patient Guide to osseointegration”. The document referred to from the evidence of Ms Roberts is the document titled “Osseointegration Surgery A Guide for Patients” dated 1 May 2018 (with Ms Roberts’ evidence being it was still in circulation after that time). That document does list some associated risks, but states that these complications are “rare”, that the list is “to inform, not alarm you” and “serious complications are uncommon”. It states the most common complication is infection and refers to this as a risk of “minor” infection, and claims this risk has “dramatically reduced with the introduction of the single-stage surgery and refinement in surgery techniques”. It states that most of the time, a course of oral antibiotics is sufficient, in rare cases intravenous antibiotics or surgical debridement may be required, and in extreme cases a second operation may be needed to remove the implant, followed by a third operation to re-insert it. Many of the risks and complications that were experienced by the patients who gave evidence are not referred to (e.g. odour, hypergranulation and maggots). I note also that on the first page of the Guide, it refers to the implant being directly attached to the skeleton, which “allows for freedom of movement, greater control of the limb and reduced overall pain” (emphasis added).

604 Dr Al Muderis’ evidence as to what he told patients in relation to the risks and complications of surgery is set out in the discussion above in relation to consultation reports. The applicant submitted:

The witnesses did not describe the risks and complications discussed with patients in exactly the same terms, because they did so in their own words, but considering the evidence as a whole, a consistent picture emerges as to the nature and content of the discussion. The Court would be satisfied that Dr Al Muderis’s usual practice included discussion of the following risks and complications:

(a)    Death. Dr Al Muderis, Ms Roberts and Ms Harris deposed that the first thing he would say during the discussion of risks was always “You could die”. This is an alarming and attention-grabbing way to begin the discussion which would serve to make the patient take notice and take the discussion seriously.

(b)    General risks of surgery. Apart from death, those discussed included heart attack, stroke, deep vein thrombosis, pulmonary embolism, pain and complex regional pain syndrome, and delayed recovery.

(c)    Likelihood of infection. Many witnesses deposed that Dr Al Muderis regularly uses phrases such as “infection is a matter of when, not if” and “there is a 100% chance you will get an infection”. Patients were told they might get recurrent infections, particularly above-knee amputees, those who were overweight, and those with more fleshy tissue.

(d)    Severity of infection. The distinction between a superficial infection localised to the skin or the stoma, on the other hand, and a deep infection around the bone, on the other hand, was explained to patients. They were told that less serious infections could be resolved with oral antibiotics, but that deeper or more serious infections might need intravenous antibiotics, surgical debridement and washing out, or removal of the implant.

(e)    Failure of the implant. It was explained that the implant might become loose, either due to infective or non-infective loosening, and need to be removed.

(f)    Re-amputation and bone loss. Patients were told that, due to infection or other complications, it might become necessary to amputate more of their leg, and that they could lose the rest of the leg. Dr Tetsworth deposed that patients are told “There is a possibility we could make you much worse”. They were told that they might end up back in a socket prosthesis or be left wheelchair-bound.

(g)    Pain. Numerous witnesses deposed that Dr Al Muderis habitually says “This is not a pain-relieving procedure. This procedure is about mobility”. Patients were told that the level of pain post-surgery was highly variable and difficult to predict. They were told that they were likely to suffer from nerve pain, because amputation involves severing nerves, which causes neuroma formation. They were told that TMR [Targeted Muscle Reinnervation] could be performed to address this issue, but that a portion of patients still suffer ongoing neuropathic pain. It was explained to them that osseointegration in itself would not improve neuropathic pain.

Patients consulted a specialist pain physician as part of the consultation process.

(h)    Wound healing complications. Apart from infection and implant loosening, these included fractures, malunion, and non-union of the bone.

(i)    Revisional procedures. Patients were told that revisional surgery such as stump refashioning or nerve surgery may be necessary, usually around one year post-surgery, and that stump refashioning was more likely for above-knee amputees, women, and those with a higher body mass index.

(j)    Drainage and odour. It was explained that there would be discharge from the stoma, the amount of which could vary from significant to minimal. Patients with a larger body mass index and transfemoral amputees tend to have more discharge. Odour associated with the discharge from the stoma was often discussed, but not always because it is not consistently a problem for patients.

(k)    Stoma hygiene. Patients were educated about what it meant to have a stoma and the steps they would need to take to maintain the hygiene of the stoma.

(emphasis in original)

605 The applicant identified that this list had been compiled from the affidavit evidence of Drs Al Muderis, Tetsworth, Stoita, O’Carrigan, Alttahir, Basten, Doshi and Al-Jawazneh, as well as Mr Laux, Ms Roberts and Ms Harris.

606 The applicant sought a finding that Dr Al Muderis’ standard practice regarding the advice he gives to patients of the risks and complications of osseointegration included those matters. I note at the outset there is no reference to any time frame at which it is said these matters are to be regarded as part of Dr Al Muderis’ standard practice (given the timing of the events described by the patients). The applicant’s witnesses’ evidence appears to be based on their presence at, for example, the group consultations. However, no witness gave evidence that all those matters were discussed with patients. Rather, the list is a combination of aspects of each of the witnesses’ evidence. For some of those topics, only one or two doctors deposed to the matters (e.g. recurrent infections at [604] above, is only mentioned in the evidence of Drs O’Carrigan and Tetsworth, while the evidence of more discharge in certain circumstances is only mentioned in the evidence of Dr Stoita). As described earlier, there are inconsistencies in the evidence in relation to whether Dr Al Muderis told patients that “infection is a matter of when, not if” and that “there is a 100% chance that [they] will develop an infection at some stage”, with Dr Doshi’s evidence being that he did not recall it being said at all (and agreed if it was said, it was important to be recorded in the consultation report). The submission above that odour is not always discussed because it is not consistently an issue for patients refers to Dr Tetsworth’s evidence that they do not discuss it with every single patient, but that it comes up “quite often”. On the other hand, Dr Stoita’s evidence was that they tell the patients that “all develop an odour associated with their stoma at some point”. Of the 11 witnesses relied on for the purposes of this submission, only Drs Al Muderis, Tetsworth, Stoita, O’Carrigan and Ms Roberts deposed to the patients being told that the surgery is not a pain-relieving operation, but about mobility. Further, only Dr O’Carrigan stated that they tell patients of the risk of maggot infestation. This is in a context where Dr Al Muderis said in cross-examination that maggots were not discussed until after the Broadcast:

… the maggots are not a complication of the surgery, so it’s not a standard – it was not a standard discussion. It is now after the episodes of 60 Minutes … We chose to inform patients about maggots now since the episode of the 60 Minutes.

I note also that only Dr Al Muderis referred to a patient being told about granulation or hypergranulation, what it is, or how it is treated (although I note this is not included in the aforementioned list of risks in his submissions at [604] above). These provide only some examples of the issues that arise.

607 Given the context that the witnesses said these risks were referred to in consultations, the fact that some topics were not referred to by many of those witnesses is telling. It is difficult to understand how something can be regarded as a standard practice when those who the applicant relies on to establish the practice do not refer to it. This is particularly so where, even on the evidence relied on by the applicant, a topic of risk (e.g. odour) is not always discussed. Dr Tetsworth’s explanation justifying the approach in respect to odour because it is “less consistently an issue” reflects a misunderstanding and is troubling. That this issue may arise for a patient having had the surgery is known. That is the basis in which a patient should be told about a risk.

608 I am not persuaded that it has been established that all the risks and complications identified above were discussed or communicated to patients as a matter of standard practice by Dr Al Muderis in the group consultations. Although risks and complications as a topic was raised with patients, the applicant’s evidence does not establish the standard practice in relation to the extent of the content provided. Further, evidence of a standard practice does not address how a witness is told the information. For example, a doctor might recite the risks and complications but downplay the seriousness of them. This evidence is also to be considered together with other evidence, including, amongst other things, the consultation reports.

609 I note also, as evident from other discussions, the international patients, and some interstate patients did not have a group consultation in the manner that typically occurred at the LRC (e.g. for international patients, Mr Bruha’s and Ms Çalan’s consultation reports do not list anyone else as having been present, while Mr Wynne’s report only lists Ms Roberts; for an interstate patient, Mr Haskett’s report only refers to his prosthetist, a researcher and Ms Roberts being present).

610 The applicant submitted that the proposition that a surgeon “as senior and experienced” as he routinely tells patients nothing or almost nothing about material risks of major surgery is inherently very implausible. He submitted it “presupposes a breach of medical professionalism to an extraordinary degree” and “is even more implausible and extraordinary when one considers that he was accompanied during osseointegration consultations by other numerous medical professionals, including other orthopaedic surgeons”. I am conscious of this submission in assessing the evidence. However, it is not as simple as the applicant contends. As reflected from the discussion above, there are limitations in the evidence. As apparent from the paragraph immediately above, the contention that other orthopaedic surgeons were present at group consultations does not apply to some of the circumstances in this case.

611 Before leaving this topic, I will address the applicant’s submission in relation to the first risk identified above, being death, which is said to be “an alarming and attention-grabbing way to begin the discussion which would serve to make the patient take notice and take the discussion seriously”. That death is a risk of all surgery is well known and patients seeking osseointegration are likely to be experienced patients. In this case, many patients gave evidence of having had numerous surgeries prior to meeting with Dr Al Muderis in relation to osseointegration. In that context, telling the patient about the risk of death is hardly likely to be either alarming or attention-grabbing. It was not suggested to any witness that that was the effect of what was being told. To the contrary, it was apparent that the witnesses were generally familiar with the standard risks of surgery; the issue is whether they were informed about the specific risks associated with osseointegration.

612 The applicant submitted that the Court should not conclude that Dr Al Muderis’ practice is any different in general orthopaedic consultations, as compared to osseointegration consultations. He relied on the evidence of Ms Moti (a nurse who mainly dealt with patients having joint replacements and arthroscopies and did not have much involvement with osseointegration patients), which is said to be similar to the evidence given in relation to osseointegration cases. She deposed that she “observed that [Dr Al Muderis] takes time to explain the risks of surgery to patients during his consultation”, and that “no surgery has a guarantee of a successful outcome”. The basis of Ms Moti’s evidence is unclear as her affidavit said she generally saw the patients straight after their consultation with Dr Al Muderis. Although she said she “observed” Dr Al Muderis, there was no evidence that she was at the consultations. In any event, that is the extent of the evidence. Furthermore, some of the consultation reports in evidence concerning orthopaedic patients do not refer to any risks and complications being explained, but rather with him having provided them with the Australian Orthopaedic Association information pamphlet and asking them to read it for the purposes of informing the patient about the risks and complications of the procedure (e.g. Ms Hutton, Mrs Gollan, Ms Slater, and Mr Rahiman).

613 As referred to elsewhere, Dr Ruff said that the provision of the brochure and other documents was insufficient to explain the treatment options, benefits and risks, and is only an adjunct to the process of informed consent.

614 The evidence in relation to standard practices is considered in the context of all other relevant evidence, in assessing the issues in the patient cases studies.

Multidisciplinary approach

615 The applicant repeatedly promoted that his clinic adopted a multidisciplinary approach. For example, Dr Al Muderis’ affidavit states:

[50]    When I consult new patients who are considering whether to have osseointegration surgery at the Limb Reconstruction Centre, I do so in a clinic with a number of other medical professionals. Typically, this will include other orthopaedic surgeons – including my colleagues Dr Kevin Tetsworth, Dr Razvan Stoita, Dr Tim O’Carrigan and Dr Mustafa Alttahir – as well as fellows, nurses, and prosthetists. The patient is also consulted by a psychologist and a pain physician as part of my clinic. The psychologist and the pain physician sometimes join in on the group consultation with me and the other orthopaedic surgeons.

[51]    During the group consultations, all the consultants present are invited to express their opinion on the patient. We also consider the radiology and reports prepared by the pain physician and the psychologist. We then discuss the case as a group and endeavour to reach a consensus as to the patient’s suitability for the surgery.

616 This is also evident in the complete transcript of the unedited 60 Minutes interview with Mr Steinfort, where Dr Al Muderis said the following (none of which was included in the final publication of the Broadcast):

We work in a very large multidisciplinary team. Every single member of our team has equal vote equal right of refusal.

…

I work in a very large multidisciplinary team. We are five surgeons at the moment. Every single individual is equal and we all work independently and collectively with each other, we [work] in a team where there is a rehabilitation physician. There is a physiotherapist, there is a [prosthetist], there is a psychologist, there is a pain specialist. There is an infectious disease consultant. They’re all individuals, they [are] all independent.

…

Every single person that I work with has equal influence and equal decision making and equal importance in the outcome of every single patient.

617 To repeat the observation above, despite those assertions, the evidence reflects that such multidisciplinary clinics did not apply to international patients (and some interstate patients).

618 Imputation [16.17] is that Dr Al Muderis overrode the protocol of a specialist assessment team deciding the suitability of patients to have surgery, by going ahead irrespective of the team’s decision. The respondents alleged in their defence that Dr Al Muderis’ practice changed such that even if everyone else in his multidisciplinary team came to an opinion that a patient was not a suitable candidate for surgery, but Dr Al Muderis considered they were, his opinion prevailed.

619 There are several points to address.

620 First, the applicant referred to the evidence of Dr Al Muderis’ colleagues, Drs Stoita, O’Carrigan, Alttahir and Basten, submitting that their evidence that Dr Al Muderis did not disregard or override the opinions of others should be accepted. The applicant submitted that the evidence reflects that a patient is referred to a particular surgeon, and that surgeon has ultimate decision-making responsibility for the patient. When there are divided opinions, somebody needs to make an executive decision, and if Dr Al Muderis is the surgeon with the referral, that responsibility falls to him.

621 It is appropriate to consider the terms of the evidence. Dr O’Carrigan’s evidence was as follows:

[6]    I understand it is alleged that Dr Al Muderis dominates the group and imposes his view on the rest of us, if he deems the patient suitable for osseointegration. This is not the case. Dr Al Muderis is not an indecisive surgeon, and in my view he has good instincts and good clinical judgment, but he is also not inflexible and there have certainly been cases where another member of the group has changed his mind about the proper diagnosis or treatment.

[7]    Ultimately, however, someone has to take responsibility for making a decision, and that is the surgeon holding the referral. If the patient was originally referred to Dr Al Muderis, the patient is his responsibility and it is up to him to make a call.

622 Consistent with that evidence, Dr O’Carrigan accepted in cross-examination that if the patient had been referred to Dr Al Muderis, he would ultimately be responsible for the patient. Dr Tetsworth described that Dr Al Muderis typically acted as the leader of the decision-making process. Further, Dr Stoita described:

I understand it is alleged that Dr Al Muderis will overrule the rest of us, if he thinks the patient is suitable for osseointegration and we do not. This is not true. He does not overrule others, but if the patient was referred to him, he is ultimately responsible for the patient and he is the one who must make the decision.

623 Dr Alttahir’s evidence was to a similar effect:

I understand that it is alleged that Dr Al Muderis “overrides” the surgical team regarding a patient’s suitability for surgery. This is not the case. There is a collective decision-making process between the surgeons. A consensus between the surgeons often determines the final decision, in conjunction with the patient’s preference for treatment options. The referring surgeon ultimately takes medical responsibility for the decision-making process, and hence they make the call on the surgical plan.

624 It follows then, that regardless of the opinion of others, if it is Dr Al Muderis’ patient, he ultimately makes the decision. That decision may be contrary to the opinions of others. That is not described by these witnesses as him overruling other opinions, but rather, as fulfilling his responsibility. That is rather a matter of semantics. It is a distinction without a difference. Moreover, on Dr Alttahir’s evidence, it is the views of the surgeons (as opposed to the broader multidisciplinary team) that are necessarily involved in the decision-making process. So much was also apparent from Dr Al Muderis’ evidence (addressed immediately below).

625 Second, the evidence reflects that from Dr Al Muderis’ perspective, the question as to whether a person is suitable for surgery is determined from an orthopaedic perspective. That was clear from Dr Al Muderis’ approach to Patient X, where he conceded in cross-examination that his focus was on an orthopaedic outcome (on mobility): see [784] below. This is also exemplified in Dr Al Muderis’ evidence in relation to the opinions expressed by Dr Basten (a clinical psychologist) in relation to Mr Ford (see [760] below), where he stated:

… he knows his limitation and his jurisdiction. He can comment on the psychological aspect of the patient, not on the rehabilitation aspect or the physical aspect of the patient.

626 As discussed below at [759]-[762], given Dr Basten’s report and the opinions expressed therein, it is difficult to understand how he is said to have exceeded his jurisdiction. It is also difficult to understand this in circumstances where Dr Al Muderis stated in his affidavit that:

I always listen to the opinions of my colleagues, and there have been times when I have changed my own opinion because one of my colleagues has persuaded me. If the psychologist considers that the patient is not mentally fit for the surgery, then his view always prevails.

627 Dr Al Muderis made similar comments in respect to Dr Andrew Paterson’s opinions about Mr Urquhart, where he referred to him in evidence as a pain specialist, and stated his advice is about pain management (implying, in the circumstances in which that was said, that it did not concern suitability of a patient for surgery): see [1523] below. Further, in response to a question about Dr Ho’s report which summarised Mr Warland’s issues with pain, Dr Al Muderis said:

Dr Ho is a pain specialist and he is – his – his assessment for Mr Warland is how to manage the pain. His assessment is not to tell me what to do with regards to the mechanical part of the surgery. Each individual clinicians that we have in the multidisciplinary team have their own job and we respect each other’s job and that is – there is a clear demarcation between – I don’t interfere with Dr Ho’s job about prescribing what medications for the patient and he doesn’t interfere with my job, telling me whether this patient is suitable for surgery or not because that – that designation is separate and each individual clinician has their own designation of how to treat the patient in accordance with their clinical ability, knowledge and skills.

It is difficult to understand how this attitude sits with his response to Mr Steinfort, that every person he works with “has equal influence and equal decision-making power”.

628 This evidence also reflects his attitude towards the opinions expressed by others in his team.

629 Third, the respondents submitted that repeatedly at trial Dr Al Muderis’ evidence oscillated. In some instances, for example, he sought to disclaim any responsibility for clinical decisions concerning his patients by saying they were matters for others, but in other cases (referring to Mr Ford), he denigrated the competence of other professionals or overrode their recommendations, despite their obvious cogency. I accept that his evidence did change, and seemingly did so when he provided answers which he considered best suited his case (at that time). As explained elsewhere, the applicant repeatedly gave evidence that, for example, he was not a pain specialist, psychologist or prosthetist, in answer to questions as to why there were no responses to requested help. At times, in cross-examination he answered that a particular observation (which tended to be contrary to his own) was merely proffered by a nurse, GP, plastic surgeon or other health professional, in response to not acting on information (or accepting information) from said individuals (e.g. nurse discharge summary in relation to Ms Çalan; opinions of Dr Frank Bruscino-Raiola in relation to Mr Mortimer as he is only a plastic surgeon; concerns about Patient X’s compliance recorded in a physiotherapist note as it was merely the physiotherapist’s view: see Part 6, Sections 3, 4, and 6), but on other occasions he relied on the views of others (e.g. radiologist reports in relation to Mrs Gollan and Ms Young: see Part 6, Section 8) If Dr Al Muderis considered a person suitable for surgery despite concerns expressed by other professionals, his view prevailed. He did override them.

630 I also refer to the discussion below in relation to Patient X: see Part 6, Section 3. In her case, the consultation report of 28 October 2021 sent to her GP records that bilateral osseointegration surgery was to be undertaken (given this was the consensus reached by the team). When pressed in cross-examination about Patient X’s concerns of bilateral surgery, Dr Al Muderis said that he “always” intended to only do surgery on the right leg. As discussed below, I do not accept his evidence as to intention. Regardless of the veracity of Dr Al Muderis’ evidence of intent, his evidence reflects that his attitude is that it was his decision, regardless of the opinion of others. That is, the team’s decision had no practical bearing on the surgery he would ultimately perform. On his evidence, the consultation report was “the conclusion of the team”, explaining “it’s a team decision, and the team wanted to do that”, but what mattered was his intention. On his evidence, that report does not accurately record, or inform the GP of the surgery to be undertaken.

631 Fourth, as discussed elsewhere, the patients from the United States and Turkey who gave evidence, generally did not have a multidisciplinary consultation, or if they were seen by other doctors, it was after they had fully paid for their surgery.

632 Finally, I note that Dr Paterson was not called to give evidence. Dr Paterson’s reports feature in several of the case studies, most prominently in relation to Mr Urquhart, although issues also arose in relation to other patients.

633 When it was put to Dr Al Muderis in cross-examination that Dr Paterson resigned from his team in November 2016, he gave evidence that although he resigned for a time, “he returned back and he has been working with us for many years now”. If he is working with Dr Al Muderis, then his absence as a witness stands in stark contrast to other members of his team who were called. Dr Paterson could give evidence on topics directly in issue in these proceedings (e.g. his report on Mr Urquhart). Some of the applicant’s witnesses gave evidence on the topic directly said to arise in relation to Dr Paterson, namely whether Dr Al Muderis overrides the opinions of others (being, inter alia, Dr Paterson’s opinion in relation to Mr Urquhart expressed in his consultation reports). The applicant submitted that the respondents could have issued a subpoena for Dr Paterson to give evidence, and without that Dr Al Muderis’ evidence in relation to Mr Urquhart’s consultation should be accepted. However, in circumstances where Dr Paterson is working with Dr Al Muderis, it would be expected if he were to be called, it would be by the applicant. I return to this topic when discussing Mr Urquhart’s case study.

Brochures – misleading statements

634 The brochure “Osseointegration: The Australian Experience”, published by Osseointegration International on about 30 August 2016 is a promotional brochure of 28 pages, with a large photograph of Dr Al Muderis on the cover. It features four case studies of successful osseointegration patients, including Mr Hernandez and Mr Grant. The brochure contains statements including:

(1)    “perfect fit every time”;

(2)    “Why settle for anything less than complete comfort for your mobility?” (under a photograph of a person with osseointegration walking along a beach);

(3)    “There will be a small amount of discharge from the stoma. This amount varies from patient to patient and some have none at all”;

(4)    “With normal daily hygiene the risk of infection is very low. Washing once a day in the shower, paying attention to the stump and stoma is all that is needed”; and

(5)    “there is no permanent medication required”.

635 Those, amongst other statements, are alleged by the respondents to be misleading.

636 The respondents also alleged that this promotional brochure contains a number of misleading omissions, including that:

(1)    osseointegration may fail;

(2)    osseointegration may result in a patient’s stump becoming shorter, making it more difficult to use a traditional socket;

(3)    osseointegration may result in serious infection, including osteomyelitis;

(4)    osseointegration may increase the pain experienced by a patient;

(5)    osseointegration may result in constant oozing and bleeding from the stoma for many years;

(6)    the stoma may become infested with maggots; and

(7)    osseointegration may result in hypergranulation, requiring painful treatment with silver nitrate.

637 Dr Al Muderis gave evidence that the brochure was written for use at conferences of the Amputee Coalition of America and its purpose was to showcase the technology of osseointegration. He said it was not written or used to advise patients about the suitability of osseointegration surgery for their personal circumstances. He said there was a clear disclaimer at the end of the brochure which makes it plain, amongst other matters, that the brochure is not for the purpose of providing medical advice. The applicant also disagreed with the respondents’ allegation that certain statements in the brochure were misleading.

638 It suffices to refer to three of the statements identified by the respondents as misleading in the Amended Defence (as set out at [634] above).

639 First, is the statement that: “[t]here will be a small amount of discharge from the stoma. This amount varies from patient to patient, and some have none at all”. Dr Al Muderis said it is true the amount of discharge from a stoma varies from person to person, and that patients do not always experience discharge. However, that evidence does not address the context of the statement itself, which commences by stating there “will be a small amount of discharge” (emphasis added). The next sentence must be read in this light.

640 Second, is the statement that: “With normal daily hygiene the risk of infection is very low. Washing once a day in the shower, paying attention to the stump and stoma is all that is needed”. Dr Al Muderis said it is true that the risk of infection is low with normal daily hygiene. However, this does not sit with his evidence that he told every patient when discussing the risks and complications of osseointegration surgery that “infection is a matter of when, not if”.

641 Third, is the statement: “Why settle for anything less than complete comfort for your mobility?” On page three of the brochure it also states: “Osseointegration surgery provides amputees with greater mobility, range of motion, comfort and quality of life”. The respondents submitted these statements convey to the ordinary reader that osseointegration is a pain-relieving procedure. Dr Al Muderis disagreed, noting the statements themselves do not say that. The applicant submitted that Dr Al Muderis’ view is plainly correct based on the ordinary use of the English language. The applicant submitted this is particularly so, in the context that the brochure only spoke about pain in connection with “socket related pain”. I disagree. The brochure read holistically (including patient cases referred to therein) implies to the ordinary reader that the procedure relieves pain. This is inconsistent with Dr Al Muderis’ evidence that osseointegration is not a pain-relieving procedure and a person cannot expect a pain-free experience. Rather, he said that osseointegration gives pain-free mobility, and improves mobility as compared to using a socket.

642 In relation to the alleged misleading omissions, Dr Al Muderis gave evidence that those matters are generally things about which a patient who is “actually considering osseointegration surgery” ought to be advised. He said such information did not need to be included in the brochure, since the brochure is not intended as medical advice or to advise patients of their suitability for surgery. However, the websites or brochures are designed to attract the attention of prospective patients. The brochure paints a positive picture of osseointegration, and as explained below, is used as a marketing tool. On the applicant’s evidence, it is only after the patient has taken the next step of considering surgery and having started the consultation process with Dr Al Muderis, that they then need to be told about other risks and complications. In a context where the brochure otherwise refers to risks, specifically the very low risk of infection with normal daily hygiene, or minimal discharge, the failure to refer to other risks associated with osseointegration is misleading.

643 The respondents also referred to material used in the United States to promote lectures at which Dr Al Muderis was to speak to patients and families. The flyer for a lecture held on 3 April 2015 in New York stated:

Dr. Al Muderis will discuss this ground breaking medical procedure, through which a stem made of a solid titanium core is implanted directly into the bone. The OPL connects directly to an external prosthetic device modeled on the anatomy of the human body, which promotes a more natural and pain-free experience.

644 A leaflet for a lecture in Texas on 4 November 2015, said:

The direct skeletal attachment promotes a more natural and pain free experience by utilizing the latest in implant technology, the Osseointegration Prosthetic Limb.

645 Again, I am satisfied from the passages in these promotional materials, that it would be understood by the ordinary reader that osseointegration provides an amputee with a pain-free experience. Those statements would not likely be understood as being confined to socket pain. As that is not so, the flyers are misleading.

646 The brochure “Osseo Integration: Direct Skeletal Prosthesis” (undated) published by Osseointegration Group of Australia, is said, on the respondents’ case, to downplay the risk of infection and implant failure. This has similarities with the brochure “Osseointegration: The Australian Experience” referred to above. This promotional brochure is 28 pages of the same ilk. It features six successful case studies.

647 In relation to the downplaying of risks, the respondents pointed to the responses in the “frequently asked questions” section of the brochure on page 26. This includes the response to the question “[w]hat are the risks of infection?”, where the respondents alleged Dr Al Muderis misrepresented the risk of infection by stating:

(1)    “As with any surgical or invasive procedure, there is always the risk of infection, however, long term antibiotic therapy is not required for patients receiving the OGAAP-OPL”;

(2)    “The patient may develop a minor infection at the skin-implant interface at approximately six weeks post-surgery. In the case of a suspected infection, the patient is advised to visit a general practitioner and obtain a culture swab of the wound. The general practitioner will then prescribe the appropriate antibiotic treatment for the patient”; and

(3)    “Most minor infections can easily be managed with oral antibiotics, and patients are advised to consult the general practitioner whenever required.”

648 As to the question “[h]ave there been any failures?”, the brochure states in response:

To date, there has been no single case that resulted in the loss of the rest of the limb or bone of any patient. If the surgery does not work for some reason, the patient can always return to a socket prosthesis.

649 On the evidence, I am satisfied that the brochure downplays the risks of infection and implant failure.

650 The respondents also submitted that as at 2023 (as reflected in screenshots of websites), Dr Al Muderis’ two websites, www.almuderis.com.au and www.osseointegration.org, continued to claim that discharge will be a “small amount” and many patients will “have none at all”, and that the risk of infection is “very low”. That is so for the www.almuderis.com.au website. On the www.osseointegration website, printed on 8 July 2023, but as it appeared as at 31 March 2023, this description is slightly expanded upon, but still only stated under the frequently asked questions section that:

There is a risk of bone fracture during implantation, [this] happens in approximately 10% of cases in Sydney. A fracture MAY slow your rehab down by a few weeks however in the long term outcomes are comparable. There are risks of infection, in fact you are more than likely to have a soft tissue superficial infection in the first few weeks after surgery which is routinely treated with antibiotics.

651 To the question of whether there will be a “need to be on long term antibiotics”, the response is “[n]o, it is not needed routinely”. I note that the website also contained on this page a statement that “[n]o case is too challenging”. I am satisfied that the websites at that time downplayed the risks of osseointegration surgery.

652 These brochures, flyers and websites comprise public-facing material, that provide a very positive image of osseointegration surgery and Dr Al Muderis’ practice. As the respondents submitted, their content and tenor, portray happy patients with the surgery being successful, enjoying mobility, and a significant improvement to their quality of life. This is, in part, because the risks are downplayed. Where there is a reference to risks it is very limited. This is material designed to promote the procedure and encourage its use. It is directed at prospective patients. Mr Steinfort gave evidence that Dr Al Muderis’ promotional material painted a “rosy” picture, which is an apt description. It is to get people to book in a consultation. That is the image of the procedure a prospective patient has been presented at the time of organising a consultation. It can be inferred that this is a deliberate approach.

653 The evidence of the patients as to what they said they were told about the risks and complications of the surgery is against that background which, inter alia, reflects a preparedness to downplay the risks and complications.

654 The respondents’ case is that the applicant did not inform or properly inform his patients of the risks and complications of surgery. That is, if risks and complications were explained, they were downplayed. For the osseointegration patients, as discussed elsewhere, the consultation reports (with limited exception) refer to the risk of infection being low or relatively low. Patients said they were told the low risk of infection could be dealt with by antibiotics and presented it in a manner that made it seem like it was not an issue. A positive picture was portrayed.

655 The public-facing material referred to, including the websites and brochures, promoted the positives of the procedures. To do so, the material contains misleading statements and omissions.

Fundraising

656 It is appropriate to return to a topic referred to briefly when considering the evidence of Ms Stewart, that is, that patients were advised to fundraise in order to pay for surgery with Dr Al Muderis: see [462]-[463]. Although relevant because the applicant pleads a specific imputation is conveyed in the Broadcast which alleges that Dr Al Muderis lied to 60 Minutes about encouraging staff to teach patients how to fundraise for surgeries (Imputation [13.28]), it is has a broader import. It relates, amongst other things, to the context for some of his patients and reflects on Dr Al Muderis’ practice.

657 The applicant submitted that: he does not dispute that fundraising may have been discussed with patients sometimes; that “it is unclear why it matters if he did”; and that there is nothing unethical about a surgeon in private practice charging patients for surgery as they are entitled to be compensated. Given he alleges a specific imputation about fundraising, it is difficult to understand the suggestion that he does not know why it matters. It is patently obvious.

658 The applicant referred to the evidence of Ms Harris (his practice manager since 2020), that she never witnessed him suggest to patients how they might personally finance surgery, and to the evidence of Mr Laux, Ms Dean and Dr Alttahir, to the same effect. He submitted that the evidence of Ms Roberts was that she did not recall any conversations about fundraising, loans, mortgages, or otherwise in relation to Dr Al Muderis’ osseointegration patients. Dr Al Muderis also had no specific recollection of these matters, saying that patients may have used their superannuation or taken out loans, and that some people fundraise, but that the financing aspect was not something he generally involved himself in.

659 As referred to above, Ms Stewart gave evidence that she was told by Dr Al Muderis and Ms Bosley to tell overseas patients how to fundraise if they were concerned about money. She maintained this when challenged in cross-examination. As explained above, Ms Stewart’s evidence is supported by other evidence, including evidence of two emails.

660 First, is in an email by Ms Bosley to a prospective patient from the United States, dated 8 January 2016, where she noted that they did not offer payment plans for international patients, but stated that “the other possibility is looking at fundraising or taking a loan in the US to cover the cost of your surgery”. Given Ms Bosley’s position (who it is to be recalled previously worked as Dr Al Muderis’ clinical and research coordinator and business manager) and in light of the context of other evidence of the patients referred to below, the compelling inference is that such suggestions were made with the applicant’s knowledge.

661 Second, is in an email exchange in September 2016 between Dr Al Muderis and another doctor in the United States, where that doctor informed Dr Al Muderis of a prospective patient interested in osseointegration but noted that funding would be a problem. Dr Al Muderis responded, copying Ms Bosley, stating inter alia, “[w]e may need to start a discussion with the patient to teach him how to do fund raising for his surgery”.

662 The applicant submitted this email was not shown to him during the hearing, and he has not been given an opportunity to address the issue, and therefore the allegations about fundraising should not be entertained. I do not accept that submission. The email is in evidence.

663 It is necessary to put that submission in context. In the Broadcast, Dr Al Muderis was asked by Mr Steinfort whether he had encouraged his staff to teach patients how to fundraise, to which he responded: “No. That’s never happened. That – I’m actually – as a matter of fact I’m very strongly against that. GoFundMe and these things we don’t allow it”. Dr Al Muderis went on to emphasise that he never has, and “never will” do this:

[d]efinitely never encouraged any of the staff or any person. This is not my practice. This is not what I would do. This never happened in – in the past, would never happen in the future.

664 At one stage, as part of the above passage of questions, the transcript of the raw footage of Dr Al Muderis’ 60 Minutes interview records that he also said “as a matter of fact, I’m philosophically oppositional to anyone raising money or go and GoFundMe to pay for their surgery”. Although this statement was not included in the Broadcast, the SMH and The Age Online Articles refer to it. The Broadcast then explained that there were leaked documents:

leaked documents tell a different story with an email from the surgeon himself suggesting his staff teach a patient how to do fundraising for his surgery. Another email shows an employee proposing a different patient look at fundraising or taking a loan so they could afford osseointegration.

665 It is plain from the Broadcast there were two leaked emails, one of which was an email from Dr Al Muderis. These are the two emails referred to above. The content of Dr Al Muderis’ emails was published in some of the Publications complained of, being the SMH and The Age Online Articles. Dr Al Muderis was plainly on notice of the existence of the emails – they are from his business. Despite that, he chose to plead the imputation he did in relation to the Broadcast. These two emails are in evidence, to which there was no objection. Although the September 2016 email does not appear to have been put to him in cross-examination, it can hardly be said that the applicant was not on notice about its existence, nor that he was unaware of its contents. The submission that he has not been given an opportunity to comment on it, given the circumstances, cannot be accepted. He could have commented but chose not to.

666 Pausing there. Dr Al Muderis’ statement to Mr Steinfort that he is “philosophically oppositional to anyone raising money or go and GoFundMe to pay for their surgery”, although not published in the Broadcast, was made by him for publication. It is in the other Publications. When Dr Al Muderis made the statement, he was not to know it would not be part of the Broadcast. It was a gratuitous statement, it can be inferred, said to lend sincerity and veracity to his denials, reflecting he was morally opposed to fundraising as a means of paying for surgery. He embellished his denials, to make them sound more convincing. This was said in a manner which also sought to achieve that. His denials about not advising about fundraising (and getting Ms Stewart and others to advise) are untrue. His preparedness to not only lie to the public about fundraising, but to embellish that lie in the manner he did tells generally against his credit.

667 His knowledge and involvement in suggesting fundraising is also supported by the evidence of patients. Ms McIntyre, Ms Ulrich and Mr Bruha each gave evidence that Dr Al Muderis said to them that one way to raise money to pay for the surgery was to fundraise.

668 Although the applicant submitted that he did not dispute fundraising may have been discussed, he denied for example, in his affidavit that he discussed fundraising with Ms McIntyre as alleged, but did not otherwise elaborate further. In cross-examination, he purported to have no recollection of conversations to that effect with Mr Bruha, Ms Ulrich or Ms McIntyre. He said that he did not recall: telling Mr Bruha that “fundraising is one of the ways patients have paid for their surgery”; telling Ms Ulrich that “some people fundraise, some people put their house up and take a mortgage”; or telling Ms McIntyre that a lot of patients choose different ways to raise the money whereby “[s]ome patients have private means. Some patients take out personal loans and some fundraise”. Dr Al Muderis’ evidence in cross-examination was that he does not go into details with patients about how to raise funds. I note that shortly after that first meeting between Ms Ulrich and Dr Al Muderis, Ms Ulrich started a “GoFundMe” online fundraiser and raised around US$20,000 from contributors. Mr Bruha also undertook fundraising to finance his surgery. I accept the evidence of each of those witnesses, that Dr Al Muderis raised fundraising with them.

669 I am satisfied that Dr Al Muderis, and others on his instruction, raised fundraising with some prospective patients as a means of obtaining the funds to pay him for surgery.

670 I am satisfied that the respondents have established that Imputation [13.28] – that he lied to 60 Minutes about encouraging staff to teach patients how to fundraise for surgeries – is substantially true.

Section 2 — Ms Megan McIntyre and Mr Donald Grieve

Ms Megan McIntyre

671 Ms McIntyre was an honest, credible, and reliable witness. I accept her evidence.

672 Ms McIntyre owns a business as a horse trainer. She lives on and tends to a rural property in South Australia, which requires physical labour. She lives a very active lifestyle. As a result of an accident in 2016, she has a right below-knee amputation.

673 She attended the consultation with Dr Al Muderis to discuss osseointegration on 24 May 2018. She was seeking a second opinion, having spoken to a surgeon in Adelaide, Dr Tom Savvoulidis. She gave evidence that Dr Savvoulidis told her that one concern with having the surgery was that, as a horse trainer, her working environment exposed her to a higher risk of infection. Dr Al Muderis opined in the consultation report that she was suitable for surgery, and it was “reasonable and necessary” that she be offered it. Ms McIntyre chose not to undertake the surgery.

674 On arriving at Dr Al Muderis’ clinic, Ms McIntyre was directed where to sit, which was between two women who had positive outcomes from the surgery. One was a fellow horse rider.

675 Aspects of the events thereafter are in dispute and are significant.

676 First, her consultation involved Dr Al Muderis and Ms Roberts, and although she accepted there were others in the room, her evidence was that they were not participants in the consultation. I note that nonetheless the consultation report lists other participants who purportedly consulted with Ms McIntyre, which does not accurately reflect what occurred. In cross-examination, Dr Al Muderis did not recall Ms McIntyre, and his evidence that there were seven people involved in the consultation is evidently based on the information contained in the consultation report. I have addressed the question of reliability of these reports above.

677 Second, and more concerningly, Ms McIntyre gave evidence that there was a discussion about the risk of infection with Dr Al Muderis, including him telling her that there was a higher risk of infection in her case because of her work environment and lifestyle. Despite that, as Ms McIntyre pointed out, the consultation report she and her doctor received described the risk of infection associated with her surgery as relatively low (in the same pro forma way as discussed previously, as with many of the consultation reports in this case generated by Dr Al Muderis). That was one of three errors Ms McIntrye identified on reading the report (which included incorrectly recording her date of birth). Dr Al Muderis’ evidence was that the words he said to Ms McIntyre relating to risk were those captured in the report: “we regard Megan as relatively low risk. Her procedure would be very standard”. Given that the context for her consultation included that one of her concerns was that she may be a higher infection risk, it is likely that she would accurately recall the advice given to her.

678 Ms McIntyre also gave evidence that Dr Al Muderis told her if she followed his protocol she would have “little to no complications” following the procedure. That is to downplay the risks and complications. The consultation report similarly stated the “complication rate for the procedure has been extremely low”.

679 Third, Ms McIntyre gave evidence that the reference in the report to the “phantom sensation” being “troublesome for [her]” is inaccurate. Although, in a pre-surgery questionnaire she answered “yes” when asked if she experienced phantom pain, she did so because there was no category to describe her distinct feeling. Dr Al Muderis deposed, citing the pre-surgery questionnaire, that Ms McIntyre answered that she did experience phantom limb pain, had experienced it several times in the last week, and that on average each episode lasted several hours.

680 However, Ms McIntyre’s evidence was that she subsequently told Dr Al Muderis during the consultation that she did not experience phantom pain, but more a sensation like pins and needles. Moreover, Ms McIntyre’s evidence was that she never implied that the sensation was “a large enough issue to require additional [TMR] surgery” and that it was odd to her that a surgeon would suggest TMR surgery in that context.

681 The applicant submitted that Ms McIntyre, in giving evidence that the report was inaccurate in recording that “phantom sensation is … troublesome for Megan”, misread the report. He asserted that she agreed, in cross-examination, that “phantom sensation” was discussed as set out in the report. That is a strained reading of the evidence. At no point did Ms McIntyre agree her experience with pins and needles was a “phantom sensation”, nor did she ever describe it in those terms. That said, although the report is not correct, I accept that it may have been a result of a misunderstanding in the circumstances.

682 Fourth, Ms McIntyre’s evidence was that during the consultation, Dr Al Muderis implied that his implants were superior to those used by other surgeons. He told her that the implant that would be used was designed by him and was the best available. He said words to the effect of: “I am the most experienced surgeon at performing this surgery in Australia and we have the most experienced team.” When she told him she had seen Dr Savvoulidis, he said words to the effect of: “I believe he’s not very experienced”.

683 Ms Roberts gave evidence that Dr Al Muderis did not make that comment about Dr Savvoulidis. Dr Al Muderis denied discouraging her from seeing any other surgeon and suggesting to her that Dr Savvoulidis was not very experienced.

684 Fifth, Ms McIntyre’s evidence was that during the consultation she asked about the price of the procedure. Either Dr Al Muderis or Ms Roberts suggested that the procedure would be somewhere in the region of $40,000 to $50,000 out of pocket. Dr Al Muderis said it might be more if something went wrong with the surgery. He said words to the effect of:

A lot of patients choose different ways to raise that money. Some people decide to re-mortgage their homes. Some patients have the private means available. Some patients take out personal loans. And some fundraise.

685 Ms McIntyre told him she did not own her home and was not in a position to get a personal loan for that sort of money, so she would have to go the fundraising route. Ms McIntyre’s evidence in cross-examination was that she then turned to her friend Rachel, also present at the consultation, and mentioned they could do chocolate fundraisers like they do in primary schools. Dr Al Muderis laughed and said words to the effect of: “that’s a lot of Freddo Frogs”.

686 The applicant submitted that Ms McIntyre’s oral evidence that she was the first to raise the notion of chocolate fundraisers “wholly undermines her allegation”. Whether she or Dr Al Muderis was the first to do so is immaterial. Ms McIntyre’s evidence otherwise demonstrates that Dr Al Muderis was the first to raise the topic of fundraising more broadly.

687 Ms Roberts’ notes from the consultation on 24 May 2018 do not reflect that fees were discussed. In their affidavits, Dr Al Muderis denied discussing fundraising with Ms McIntyre, and Ms Roberts did not recall whether any discussion of fees occurred. In cross-examination both Ms Roberts and Dr Al Muderis accepted they could not recall whether conversations about fundraising had occurred. I note Dr Al Muderis does not dispute that fundraising may have been discussed with patients sometimes. Ms McIntyre’s evidence that he raised fundraising is consistent with the evidence of some other patients (e.g. Ms Ulrich). I do not accept Dr Al Muderis’ evidence that he did not discuss fundraising with Ms McIntyre.

688 Sixth, Ms McIntyre’s evidence was that she felt rushed. She said she felt pressured by Dr Al Muderis to have osseointegration surgery. Dr Al Muderis told Ms McIntyre that if she did not proceed with the operation quickly, her bone density would decrease because she was not weightbearing. Dr Stalley expressed the view that this advice had been misguided and there was no urgency on that basis for having the procedure. Ms McIntyre thought Dr Al Muderis was trying to convince her that the sooner she had the procedure the more likely it would succeed. He told her that she would never be comfortable in a traditional socket and suggested that she would always have skin breakdowns. Ms McIntyre felt that the consultation report, which she read at a later stage, put more pressure on her to get the surgery. She identified parts of the report in her evidence.

689 That feeling is logical given the terms of the report and its recommendation. A plain reading of it is that it was designed to promote the surgery being done in a timely manner.

690 The applicant submitted Dr Al Muderis’ warning about the risk of worsening muscle atrophy and osteoporosis (in the report) was not to put pressure on Ms McIntyre, but a statement of medical fact. That submission ignores that that medical fact, if true, would pressure Ms McIntyre to proceed with the surgery in circumstances where Dr Al Muderis has utilised it in his report. The inference is there is an urgency. In circumstances where Dr Al Muderis was applying other pressures (e.g. to raise funds), that Ms McIntyre felt pressured to proceed with surgery because of a purported urgency, is readily understandable irrespective of whether the surgery was in fact urgent.

691 Ms McIntyre also gave evidence that she told Dr Al Muderis she intended to consult with other practitioners for their opinion on her best treatment options. He said words to the effect of: “That’s entirely up to you, but I feel that once you’ve done your research, you’ll be back”. I note that this is consistent with other evidence as to comments made to patients that they would be back (e.g. Mr Grant).

692 Despite obviously wanting time to consider her position, which was entirely appropriate, only four days later, on 28 May 2018, Ms Roberts rang Ms McIntyre to follow up on the initial consultation and left a voicemail. It can be inferred Ms McIntyre did not respond. On 6 June 2018, Ms McIntyre received a further follow up email from Ms Roberts. By this stage, Ms McIntyre had decided not to proceed with the surgery with Dr Al Muderis. She does not recall responding to the correspondence.

693 As explained above, Ms McIntyre has never had the procedure. She continues to use a socket prosthesis, having recently changed her prosthesis and obtained an improved prosthetic foot which has been effective.

694 Where there is a dispute in the evidence as to what occurred, I prefer the evidence of Ms McIntyre. Ms McIntyre did not undergo the surgery and there is no obvious reason for her to be involved in this matter, except that she feels compelled to speak of her treatment. Her evidence is supported by other evidence.

695 I accept her evidence that Dr Al Muderis told her that there was a higher risk of infection given her circumstances. This is a topic which Dr Savvoulidis raised with her and given the circumstances, it can be inferred that it was a topic of interest to her. In my view the consultation report does not accurately reflect what occurred in the consultation.

696 I accept that the conversation concerning fees and fundraising occurred as she describes, with Dr Al Muderis first raising the issue of fundraising. As Ms McIntyre’s evidence reflects, she was concerned about the cost of the surgery. This was in circumstances where she did not have private health insurance. Again, that she would raise the topic that would lead to a discussion concerning fees and fundraising is credible. Other patients gave evidence that Dr Al Muderis discussed the cost of surgery when meeting with him (e.g. Mr Wynne, Mr Bruha and Mr Smith), and others gave evidence that he raised fundraising (e.g. Mr Bruha, Ms Ulrich, and see Fundraising in Part 6, Section 1 above).

697 I also accept that Dr Al Muderis said Dr Savvoulidis was not very experienced while bolstering or promoting his own experience. That Dr Al Muderis stated in his consultation report that he was “more than happy” for Ms McIntyre to pursue osseointegration under the care of Dr Savvoulidis should she prefer, does not detract from the reliability of Ms McIntyres’ evidence on this topic. This is also consistent with his general approach when referring to other doctors (e.g. questioning Dr Huang’s experience in relation to Mr Urquhart, and the evidence of Ms Mattiske that he “verbally denigrates, knocks other surgeons”, noting also that was his approach in conducting this hearing). I note also that in the circumstances, the unsolicited follow up with Ms McIntyre shortly after her consultation gives rise to an inference that Dr Al Muderis was courting her business.

698 I accept that Ms McIntyre felt pressured into undergoing the surgery. As previously described, the consultation reports are written in a manner that would lead the reader to consider that, as Dr Al Muderis writes in the report, it is necessary to undergo the procedure, and in a timely manner (or otherwise her bone density would deteriorate). The report downplayed the risks, using what appears to be pro forma language (despite having told Ms McIntyre during the consultation that she had a higher risk of infection). It also described her condition in such a way to suggest it was necessary, while at the same time saying how experienced Dr Al Muderis is, that the functional capacity in all the cases increased dramatically, and the complication rate has been “extremely low”. For example, it states:

… her activity level has declined in an accelerated fashion.

…

Unfortunately, Megan is not performing optimally with a socket, it is likely her condition will continue to deteriorate with muscle atrophy and osteoporosis which will be irreversible without intervention.

I believe that it is reasonable and necessary that Megan be offered this surgery.

…

Due to the increasing challenges Megan is experiencing, it is my opinion and I do believe that it is necessary that she be offered this procedure and would expect to see an improvement in Megan’s quality of life.

He promoted his experience. Having told Dr Al Muderis that she wanted to consider her position and to do more research, she was quickly and repeatedly followed up by the LRC in the manner described.

699 Ms McIntyre described that upon leaving the consultation she was hopeful that she could have the surgery, but from her perspective, when she returned home and discussed her experience with her partner, she realised that she had ignored some red flags.

Mr Donald Grieve

700 Mr Grieve is Ms Grieve’s father. Mr Grieve is a left below-knee amputee. Since February 1963 he has been ambulatory with the aid of a socket prosthesis. Mr Grieve consulted with Dr Al Muderis for advice on osseointegration on 25 October 2018 at the Complex Reconstructive Clinic at Hurstville Private Hospital. He was 74 years old at the time.

701 He gave evidence he was concerned about phantom pain. That was the only reason he was interested in osseointegration. He gave evidence that he had heard Dr Al Muderis speak about his life at a meeting at the Australian Club and he took the opportunity to ask him whether osseointegration helped with phantom pain, which Dr Al Muderis confirmed at the time. On being told it does, he decided to obtain a referral to Dr Al Muderis and book in a consultation. He also gave evidence that before the consultation he had read Dr Al Muderis’ book in relation to his life and enjoyed it. He had regard for Dr Al Muderis from the talk he attended and was impressed by his book. He had researched osseointegration.

702 Before the consultation, Mr Grieve completed various paperwork, had his legs x-rayed and undertook a bone density test.

703 What occurred at the consultation is in dispute. Mr Grieve’s evidence was that Dr Al Muderis told him words to the effect that he was ideally suited to undergo osseointegration. Dr Al Muderis said words to the effect that “[y]ou are now in your mid-70s and I expect that if you do not undergo [osseointegration surgery] you will be wheelchair-bound by the time you turn 80”. He said he would lose mobility and be wheelchair-bound within five years. He was told he could be immobile within a year.

704 As Dr Al Muderis said this, he drew a graph on the back of Mr Grieve’s x-ray envelope to model what he said was, and would be, Mr Grieve’s mobility over time, including the prospective impact of having osseointegration. Mr Grieve produced the x-ray envelope.

705 Mr Grieve said that only Dr Al Muderis spoke during the consultation, and the questions he asked were ignored. He said the consultation took, at most, about ten minutes. On leaving the consultation, he saw Mr Laux, who he knew. Mr Laux advised against having the procedure given the risk involved. Mr Grieve did not undertake the surgery, and his mobility continues to be as it was in the years before October 2018. He plays 18 holes of golf twice a week, walking the first ten.

706 Dr Al Muderis’ evidence was that himself, Dr Stoita, Dr O’Carrigan, Dr Basten, Mr Laux and “others” were in attendance during the consultation. He also gave evidence that he and nine other medical practitioners reviewed Mr Grieve. Dr Al Muderis denied that he told Mr Grieve he would be in a wheelchair within five years unless he underwent the surgery. Dr Al Muderis said Mr Grieve told him that his mobility had started to decline slightly in 2018. Following the consultation, Dr Al Muderis sent a consultation report to Mr Grieve’s GP, Dr Bruce Greig. The report is undated (only noting the date of the consultation) but his medical file records it was sent on 9 November 2018. The report, which is in evidence, suggests it was copied to Mr Grieve’s email address.

707 Mr Grieve gave evidence that although he recently discovered his GP had received a copy of the report, he had never received a copy or discussed it with his GP, and that the report was not an accurate reflection of the consultation. Dr Al Muderis relied on this consultation report in giving evidence.

708 Dr O’Carrigan gave evidence that the advice given at the consultation was that, as Mr Grieve had good mobility and function with his socket prosthesis, osseointegration was of no advantage to him. He had no recollection of the graph being drawn but did not dispute it. He accepted in cross-examination that Dr Al Muderis “could have” told Mr Grieve that if he had osseointegration surgery he could expect his mobility to improve to 90-95% of what it had been prior to the accident.

709 Ms Roberts also gave evidence of persons (besides herself and Dr Al Muderis) who were at the consultation. However, her evidence did not entirely accord with the consultation report as she said Dr Tetsworth was present, which is not recorded. She said that the consultation lasted about an hour. She did not observe Dr Al Muderis drawing a graph on the x-ray envelope. She said she did not deny it was drawn, but that she is often writing notes and therefore is not aware what is occurring around her. She accepted her memory of what occurred at the consultation was incomplete.

710 Mr Laux also gave brief evidence of the consultation. He said he probably was not in the room for the whole consultation, but rather in and out of the room “quite a few times because … we consult and treat patients at the same time”. He did not see Dr Al Muderis draw the graph. He did not know whether he was in the room at the end of the consultation. Mr Laux gave evidence that he does not believe that Dr Al Muderis was pressuring Mr Grieve into the surgery. That evidence must be viewed in light of his concession that he was in and out of the room and did not see Dr Al Muderis draw the graph. He also gave evidence that Dr Al Muderis advised Mr Grieve there is no need for osseointegration if he is able to walk without issue and is mobile, which I note is not inconsistent with Mr Grieve’s account.

711 Dr Stoita conceded during cross-examination that his evidence of the consultation is based entirely on the consultation report, and he has no independent recollection of the events.

712 In summary, none of the applicant’s witnesses gave evidence of or recalled that a graph was drawn by Dr Al Muderis, although Dr Al Muderis himself accepted as much. Mr Grieve’s evidence of the drawing of the graph during his conversation with Dr Al Muderis is in the context of the lack of evidence from those witnesses. The applicant’s witnesses’ evidence was generally reliant on the consultation report, which Mr Grieve said is inaccurate.

713 Although Mr Grieve was somewhat curmudgeonly at times when giving evidence, his evidence was given in a direct and straightforward manner. He had a good recollection of events. My clear impression is that Mr Grieve was honest, credible and reliable. I accept his evidence.

714 This was Mr Grieve’s only consultation with Dr Al Muderis, and he had organised it for a purpose. He has cause to remember the events. This is to be contrasted to the other persons who were present, where this was one of very many consultations attended over the years. For them, there is no particular reason to remember this one consultation. Dr Stoita’s evidence in this respect is illustrative: “I see about 100 patients a month or so, even more. So it would be impossible to remember [this consultation with Mr Grieve]”.

715 On the other hand, Mr Grieve, whose mobility had been largely stable since his accident, had been told that was to rapidly change. His evidence was that he was extremely concerned about what he had been told and as a result consulted his prosthetist. He did not have the procedure and his mobility, as noted above, has continued to be as it was in the years before October 2018.

716 The graph Dr Al Muderis drew during the consultation which Mr Grieve kept, supports key aspects of Mr Grieve’s evidence of what occurred.

717 The diagram depicts a black line, which Dr Al Muderis and Mr Grieve agree demonstrates what happened to Mr Grieve’s mobility in the period after his accident, including a stable but lower level of mobility in the 50 years following. Dr Al Muderis gave evidence that he drew the line dropping around the period marked “2018” because Mr Grieve conveyed to him that his mobility was on the decline in the period leading into and including 2018. Mr Grieve did not directly address this point in his evidence (although he explained that “the section on the y-axis to the right of [the] notation [“2018”] was intended to be in the order of one year”).

718 Although the meaning of the graph in the period following 2018 is mostly in dispute, Dr Al Muderis and Mr Grieve agree that the black line, which declines sharply, depicts a very quick drop off in mobility down to nothing (i.e. to being wheelchair-bound). They also agree that the upper most line (with the entry 90%), in pink, shows an increase in Mr Grieve’s mobility back to 90-95% of his 1962 level, which he would eventually enjoy if he underwent osseointegration.

719 A second downward line (with the entry 10%) is less sharp and is also in pink. It appears to depict a scenario in which Mr Grieve’s mobility as at 2018 will suffer over time, but does not diminish to zero. Mr Grieve, in cross-examination, did not understand the meaning of this third line and did not recall what was said to him about it. Dr Al Muderis’ evidence was that the line represented a “realistic expectation” for Mr Grieve if he continued with his socket prosthesis. I return to the possible meaning of the third line below.

720 The obvious reading of the graph reflects that it was drawn to create the impression that without osseointegration, his mobility, which had been stable for about 50 years, would rapidly decline, but if he undertook the operation, he would regain 90-95% of his pre-amputation mobility. The compelling inference from the diagram is that it was drawn to convey to Mr Grieve that unless he underwent osseointegration, his mobility would be in serious decline in the short term. Although Dr Al Muderis gave evidence that the black line represented a decline in mobility per “the statistics from the literature”, as opposed to Mr Grieve specifically, Dr Al Muderis (nor his counsel) pointed to any such literature. That this line is drawn in black (and not pink), as is consistent with the line mapping his progress to 2018, also suggests it is the scenario that will eventuate if Mr Grieve’s circumstances (being his use of a socket prosthesis) continue.

721 No other credible basis for the diagram was ventured. The suggestion that the diagram was not drawn to scale does not alter that. The year 2018 is marked, being the time of the consultation. Mr Grieve was then 74 years old. If Mr Grieve’s mobility was stable and had been for 50 years, there was no need to draw a diagram to illustrate that to him.

722 As to the third line, several circumstances give colour to its possible meaning. First, the figure “10%” accompanies this line; accompanying the upward sloping line is the figure “90%”. Second, both lines are drawn in pink. Third, Mr Grieve gave evidence that, in asking Dr Al Muderis of the downside risk in this procedure, Dr Al Muderis said words to the effect of:

The risk of failure is no more than 10%. But if the procedure is not successful I would simply proceed to amputate your leg above the knee and to insert titanium rod in your residual femur.

723 I note counsel for the applicant agreed Mr Grieve was told of the 10% failure rate for transtibial osseointegration.

724 It can be inferred, therefore, that the two pink lines represent the scenarios Mr Grieve would face if he underwent the procedure, wherein there is a 90% chance of his mobility being restored to 90-95% of its pre-amputation level or, alternatively, a 10% chance of failure, further amputation, and concomitant decline or uncertainty in his mobility. The two question marks on the y-axis (measuring mobility), as well as the waves toward the end of the downward-sloping line, suggest Mr Grieve’s expected mobility, on this scenario, was uncertain but likely to decline. Indeed, the pink lines reflect the scenarios Mr Grieve faces if he undergoes osseointegration; the black line reflects his fate if he continues to use a socket prosthesis.

725 Although this interpretation of the third line provides additional support to Mr Grieve’s overall account of the graph, it is inessential to conclude whether that is so. I note there is no fourth line predicting continued stability in Mr Grieve’s mobility, a scenario which has eventuated.

726 Mr Grieve’s evidence is also supported by a letter he sent to Dr Al Muderis via email the morning after the consultation, in which he thanked Dr Al Muderis for his “valuable, if rather gloomy, advice as to what lies ahead for me.” That the advice he received had been “gloomy” supports Mr Grieve’s recollection of events. Further, Mr Grieve gave evidence that following the consultation he sought advice from his prosthetist, Mr David Howells, because he was concerned about Dr Al Muderis’ expectation that he would become wheelchair-bound unless he underwent the procedure. The fact of seeking further advice is also consistent with his evidence as to what occurred at the consultation. He gave evidence he acted on the further advice and did not have the surgery.

727 Mr Grieve’s 9 June 2022 email to his daughter is also consistent with his version of events. It was sent in the early stages of Ms Grieve’s investigation, and prior to the commencement of these proceedings:

When I saw Al Muderis, [Stefan Laux] was there and I had a brief discussion with him, the upshot of which is that he agreed with my assessment that the risk of failure was far too great and that my preference to continue using a socket prosthesis was probably sound. One thing that I do recall from the consultation (with Al Muderis) was that he (very aggressively) forecast that if I did not undergo osseointegration I would probably be wheelchair-bound by [the] time I was in my early 80s. I passed that forecast on to David Howells who said that it was ridiculous … his patients included several amputees in their 90s who were continuing to cope very satisfactorily with socket prostheses.

728 I accept Mr Grieve’s evidence as to what was said and done by Dr Al Muderis when drawing the graph. The impression it created was clear. The applicant’s submission in closing that it was done to emphasise why Mr Grieve does not need surgery is inconsistent with the graph and unpersuasive.

729 The applicant submitted that Mr Grieve’s account should be rejected in circumstances where it is contradicted by other witnesses’ evidence and contemporaneous documents, particularly the consultation report. He also submitted that Mr Grieve cannot be regarded as an independent or disinterested witness and that he came for the purpose of supporting his daughter and assisting her defence.

730 I have addressed the reliability of Dr Al Muderis’ medical records elsewhere. Suffice to say that Mr Grieve disagreed with several aspects of this report, particularly its recommendation, on which the applicant’s submission partly relies:

Donald would be a very good candidate for osseointegration however he is functionally well enough that he can continue to perform well with the socket prosthesis. I have advised Donald to avoid osseointegration for the time being until he goes downhill. Donald will consider his options and he will see us if needs to. We have advised Donald to stay with the socket for the time being.

(emphasis added)

731 The recommendation’s terms, as emphasised, are curious. Mr Grieve denied that words to that effect were said to him. At first blush, the terms sit uncomfortably with Mr Grieve’s account. Strictly speaking, however, they are not inconsistent with Mr Grieve’s evidence about what was said. That Mr Grieve “can continue” to perform well with his socket prosthesis and is advised to “avoid osseointegration for the time being until he goes downhill” does not preclude that he was given advice that he should undergo the procedure as a matter of some urgency. The graph also depicts that when he starts to deteriorate, the rate will be rapid. I note that this is in a context where Mr Grieve had informed Dr Al Muderis that he could not undergo any surgery for at least a year due to medication he was taking for a cardiovascular condition.

732 In any event, it is apparent that the report, given the force of Mr Grieve’s evidence (as outlined), distorts the advice Dr Al Muderis gave during the consultation. In omitting details of the conversation (which is supported by the graph), which infers an apparent urgency of Mr Grieve’s case, the report is misleading. It follows that the applicant’s witnesses’ evidence about the consultation is tainted to the extent it relies on this report, which is generally the case.

733 I note that Mr Grieve is only one of several witnesses who gave evidence that the consultation reports or documents did not accurately record the events.

734 In closing submissions, the applicant made several allegations about Mr Grieve’s candour. Although some were later withdrawn, and the applicant submitted it was not necessary to make a finding of dishonesty, but rather unreliability, that is not the way in which Mr Grieve’s cross-examination was conducted on some topics. The applicant’s case is not that his evidence was unreliable, but that it was false. Ultimately, the applicant submitted that he confined his case on dishonesty to what was asserted in cross-examination.

735 In cross-examination, it was put to Mr Grieve that his evidence of the content of the Australian Club conversation with Dr Al Muderis was false. I do not accept that submission.

736 The conversation occurred on 5 June 2018. Mr Grieve said he had asked Dr Al Muderis whether osseointegration relieved phantom pain, and he said “certainly”.

737 The applicant made several related submissions challenging the veracity of Mr Grieve’s evidence on this point. First, that Mr Grieve’s evidence that phantom pain was the only factor of interest to him in seeking to consult Dr Al Muderis should be rejected. He pointed to an email dated 11 June 2018 that Mr Grieve sent to Dr Al Muderis following up on their initial conversation. He asserted Mr Grieve’s evidence was inconsistent with that email because it says nothing about phantom pain. Second, that it is unlikely that Mr Grieve asked about phantom pain during the one- or two-minute conversation given that phantom pain was, in Mr Grieve’s words in 2018, an “exceptionally irregular” occurrence. Third, the applicant submitted that Mr Grieve’s evidence, being that it was incorrect to say he had very little phantom pain in 2018, should be rejected. In this regard the applicant relied on a range of documentary evidence, including:

(1)    Mr Grieve’s referral letter to Dr Al Muderis from his GP, which discloses nothing about phantom pain or ongoing pain medication;

(2)    an online patient information form for Dr Al Muderis, in which Mr Grieve stated he experiences phantom pains “quite irregularly and not, in any [sense], chronically”;

(3)    Dr Basten’s pain and psychological questionnaires, in which Mr Grieve seemed to report low levels of phantom pain, phantom pain episodes lasting 30-45 seconds (noting none occurred in the week prior), and that phantom pain had not interfered with his normal lifestyle in the week prior (but see Dr Basten’s summary of Mr Grieve’s experience with pain, below); and

(4)    an email from Mr Grieve to Ms Roberts, in which he reported a “minimal incidence of pain” and that phantom pain was “exceptionally irregular”.

738 In so far as the applicant relies on the 11 June 2018 email and referral letter to challenge Mr Grieve’s evidence, it does not follow that he did not experience phantom pain because it is not mentioned in those documents. Mr Grieve himself recognised as much during cross-examination.

739 In so far as the applicant relies on evidence that Mr Grieve’s pain was “irregular”, of “minimal incidence” and “not … chronic”, his submissions seem to emphasise Mr Grieve’s rate of pain while ignoring its severity. Yet both frequency and severity are relevant considerations, as is reflected in Dr Basten’s pain questionnaire (and Mr Grieve’s responses).

740 Mr Grieve has experienced phantom pain of varying severity (despite aspects of his answers to the pain questionnaire suggesting otherwise). In a pre-consultation form, he explained he is “not pain-free and would like to know more about the osseointegration process as a possible alternative” to his socket system. Dr Basten’s report on Mr Grieve, which apparently accounts for Mr Grieve’s responses in the pain questionnaire, also supports as much. His report disaggregates Mr Grieve’s rate and severity of pain:

He is interested in OI because he gets some chaffing on the lateral side of the tibia and in the hope that the surgery might alter his moderately severe occasional phantom limb pain.

(emphasis added)

741 Mr Grieve’s evidence in cross-examination was that he experiences “phantom pains from time to time, of varying severity, but generally speaking they’re not an overriding problem”. He has, on one occasion, required painkillers for “abnormally prolonged phantom pains”.

742 Although the applicant submitted Mr Grieve made up his evidence to assist his daughter (given that one of the allegations in the proceedings is that Dr Al Muderis promises pain relief), the evidence he relies on does not support that. The occurrence of the conversation in the Australian Club is plausible (the evidence supports he suffers such pain), and that Dr Al Muderis gave a positive response. It is unclear how this is said to assist his daughter. It will also be recalled from the discussion above, that “Osseointegration Surgery A Guide for Patients” dated 1 May 2018 (being a document available for patients to read in the waiting room), states that the implant being directly attached to the skeleton, “reduced overall pain”. The Guide also states that it is “likely that phantom limb pain will reduce after osseointegration”.

743 The applicant also submitted that Mr Grieve, at times, refused to make obvious concessions during cross-examination. The applicant relied primarily on some cross-examination in relation to an email between Mr Grieve and his daughter on 8 June 2022 about the investigation. Properly read, I do not consider that this has the effect the applicant contended for. Even if it did, I am not persuaded that it affects his credit generally.

744 There was no clinical basis for the opinion Dr Al Muderis expressed: that Mr Grieve was likely to end up wheelchair-bound in the short term if he did not have the procedure. I am persuaded in that circumstance, by doing so, Dr Al Muderis inappropriately endeavoured to pressure Mr Grieve to have osseointegration surgery with the message conveyed that there was an urgency to it. There is no other proper basis on which the graph would have been drawn by Dr Al Muderis as it is. That was the message taken by Mr Grieve from the consultation. He acted accordingly, by consulting his prosthetist because of his concerns in relation to the prognosis given to him.

Section 3 — Mr Kerry Ford and Patient X

Mr Kerry Ford

745 Mr Ford passed away prior to the trial and no evidence from him was led at trial. Dr Al Muderis did not substantively address Mr Ford’s case in his affidavit but answered questions relating to Mr Ford during cross-examination.

746 Mr Ford suffered a penetrating injury to his left foot after stepping on a pine stake in 1993. He suffered multiple infections over the following 15-year period, ultimately requiring the amputation of two toes in 2019. Mr Ford also sustained a non-healing ulcer on his right foot after walking for an extended period during 1998 and eventually underwent a right below-knee amputation at the same time as the left foot toe amputation in 2019. Between 2019 and 2021, Mr Ford was wheelchair-bound and did not make any use of a socket prosthesis.

747 Mr Ford and his carer attended a consultation with Dr Al Muderis on 27 May 2021. Mr Ford was 71 years old at the time and lived at an aged care facility. Mr Ford’s insurance had agreed to fund the group assessment with Dr Al Muderis and his team.

748 I note a letter sent to Mr Ford on 4 May 2021 confirming his upcoming consultation suggested Drs Al Muderis, O’Carrigan, Stoita, Tetsworth and Alttahir and Ms Roberts would be in attendance. It appears from Dr Basten’s letter of 11 June 2021, that he sat in on the consultation too.

749 The consultation report was sent to Dr Andrew Whittaker (the referring doctor) on Dr Al Muderis’ behalf on 27 May 2021. The report said, inter alia:

We will be admitting Kerry into the hospital for IV antibiotics to treat the cellulitis as well as the non-healing ulcers in both bilateral limbs. Dr Mohabbat will address the vascular occlusion early next week.

We have advised him from an orthopaedic point of view we would like to aim towards a right transtibial osseointegration and a left below knee amputation and transtibial osseointegration as well. This would not only improve his mobility but also resolve the issues of the foot deformity on the left side and phantom pain. We would recommend a TMR to be done at the same time as the osseointegration. This is not only reasonable but necessary to improve his overall quality of life and is his only shot at ever walking again. If the right transtibial osseointegration does not work then we might need to proceed to an above knee amputation with transfemoral osseointegration though this is not the preferred option that would give him the best outcome at this stage.

Thank you for your ongoing care of Kerry and we seek speedy approval for his surgeries as well as vascular reperfusion with Dr Mohabbat.

(emphasis added)

750 It may be accepted that a letter sent from Dr Doshi to the insurer on 28 May 2021 refers to the further surgeries being dependent on Mr Ford’s current symptoms. However, as apparent below, the reports thereafter from Dr Al Muderis, Dr Tetsworth, and Dr Haidary, are not so qualified.

751 At the time of his consultation with Dr Al Muderis, Mr Ford suffered from very significant co-morbidities including, according to a letter dictated by Dr Al Muderis and sent to Mr Ford’s insurer on 11 June 2021, type 2 diabetes (accepted by Dr Al Muderis to be poorly controlled insulin-dependent type 2 diabetes), non-healing ulcers, history of heart failure, chronic kidney disease, vascular dementia, significant right knee arthritis, and significant obesity. The applicant’s submission that there “was no evidence of [vascular dementia] being a confirmed diagnosis” is not borne out by the evidence. The reports written on behalf of and by Dr Al Muderis referred to Mr Ford suffering from that condition and the diagnosis appeared to form a basis of opinions expressed by Dr Al Muderis. That Mr Ford had vascular dementia was also accepted by Dr Tetsworth in his report of 10 September 2021.

752 Notwithstanding these co-morbidities, Dr Al Muderis recommended osseointegration and opined in the 11 June 2021 letter to Mr Ford’s insurers, that Mr Ford was a terrible candidate for the use of a conventional socket prosthesis. He stated that Mr Ford’s chance of mortality in the coming year was greater than 50% unless he was granted the opportunity to resume weight bearing and mobilisation activities “as quickly as possible”, which would be achievable using osseointegration. Dr Al Muderis said:

within 12 weeks we would expect him to be able to ambulate independently and within a period of several weeks he should be able to resume rehabilitation and early ambulation partial weight bearing using a frame or crutches.

Dr Al Muderis opined that it would be “indefensible” if “he were to god forbid pass away during the next several months while he is waiting to even trial a socket mounted prosthesis”. The letter continued, “I do not believe I am overstating the case or exaggerating unnecessarily and I am simply stating my opinion based on documented facts and the benefits that we know will accrue to him if he has osseointegration” (emphasis added). Dr Al Muderis opined that the “core and fundamental component of his rehabilitation should begin with osseointegration”, describing it as “the absolute most critical aspect of his rehabilitation”, and “the starting point for his rehabilitation planning”. As the respondents correctly submitted, this is a “clear recommendation on Dr Al Muderis’ part that Mr Ford undergo urgent osseointegration surgery”.

753 The applicant submitted that the purpose of the letter was only to answer specific questions posed by the insurer, and that Dr Al Muderis was not giving general advice or making recommendations. That submission is not borne out by the terms of the letter, or the context in which it was sent. For the same reasons, the applicant’s submission that Dr Al Muderis was essentially asked to compare socket prostheses and osseointegration and to explain the recommendation for TMR surgery, is not an accurate reflection of the letter. Moreover, as apparent from the face of Dr Al Muderis’ letter, the questions posed by the insurer are directed to “the proposed OI [osseointegration] and TMR procedure for Mr Ford’s right leg”. I note the letter posing the questions is not in evidence.

754 To suggest, as the applicant does, that he did not provide an opinion in relation to Mr Ford’s insurance application, is disingenuous. He was providing a report to the insurance company in relation to the claim. It is difficult to accept, given the terms of his letter, that Dr Al Muderis thought the letter would be considered in a way other than as being in support of the surgery being approved. The letter is advocating a position, and in strong terms. The applicant’s submission that he was not cross-examined on the report before the member of the personal injury commission (who was ultimately deciding Mr Ford’s claim) as somehow lessening the significance of or affecting the nature of the contents of the letter, cannot be accepted. Additionally, I observe that despite the purpose of the letter, Dr Al Muderis does not refer to, or address in the letter any of the risks that would accompany osseointegration, or the impact of Mr Ford’s very many comorbidities and conditions on those risks. It is no answer to submit that Dr Al Muderis was simply answering questions, because the letter went far further.

755 As referred to above, Dr Tetsworth also provided a report in relation to Mr Ford, advocating for osseointegration surgery. The report was relied on by Mr Ford in his application for workers’ compensation to fund the surgery. This is the report in which Dr Tetsworth lists euthanasia as an option for Mr Ford. Dr Tetsworth’s attitude as to the suitability of Mr Ford for osseointegration surgery, and the opinion of others who expressed an opinion to the contrary, is referred to above (when considering Dr Tetsworth as a witness in Part 5 Section 5) and is unnecessary to repeat.

756 The tenor of Dr Tetsworth’s report is that he supported the opinion of Dr Al Muderis. Despite Dr Al Muderis’ denial that he had formed an opinion about the suitability of Mr Ford for osseointegration, the report from Dr Tetsworth reflects his understanding of Dr Al Muderis’ position: “I agree wholeheartedly with the opinion of Professor Al Muderis in that this is Mr Ford’s best option, far and away” and “[t]hose surgeons who are most knowledgeable in this area [being osseointegration], including myself and Professor Al Muderis, both emphatically agree that this is in the very best interest of Mr Ford”. In expressing his opinion in his report, Dr Tetsworth understood at the time that Dr Huang and Dr Wines had also written reports expressing a contrary opinion, although he had not read them. However, Dr Tetsworth conceded in cross-examination that Mr Ford had a terrible prognosis generally, that there was a material risk that Mr Ford would not survive the surgery recommended, that Mr Ford had been non-compliant with medical directions in the past, and that if he survived surgery, he would struggle with rehabilitation.

757 In addition, I note that Dr Haidary, a rehabilitation physician who works with Dr Al Muderis, also said in a very brief report that Mr Ford was a suitable candidate for osseointegration but would benefit from pre-operative physiotherapy.

758 Though these reports advocate for Mr Ford’s suitability for osseointegration surgery, it can readily be accepted that there were red flags in relation to Mr Ford. Some of those red flags plainly go to issues such as whether Mr Ford could give informed consent. Although Dr Al Muderis accepted that he would not want to perform osseointegration surgery on a patient who had not had a comprehensive assessment of their cognition, he rejected that a consultation report written by Dr Basten raised any red flags.

759 Dr Basten prepared a consultation report on 11 June 2021, having seen Mr Ford on the ward the day prior. He noted that Mr Ford was under a guardianship order or power of attorney. Although Dr Basten did not conduct a neuropsychological assessment, he thought “it was clear enough that there was impairment sufficient for us to act with caution”. He explained there were signs of disinhibition, poor self-monitoring and self-regulation of behaviour, with Mr Ford being completely dismissive of those problems, which demonstrated a lack of insight. Dr Basten accepted that these characteristics are red flags for surgery because they go to matters such as the likelihood that the patient would be compliant with medical and other directions. Dr Basten was of the view that there were further steps that would need to be undertaken before he could be satisfied that Mr Ford was psychologically suitable for osseointegration. From his letter of 11 June 2021, and Dr Basten’s evidence, it is apparent that at that stage, Dr Basten was not prepared to recommend Mr Ford as being psychologically suitable for the surgery.

760 Dr Al Muderis disagreed that disinhibition, poor self-monitoring and poor self-regulation of behaviour are necessarily red flags for osseointegration surgery, that Dr Basten was implying that Mr Ford could not give informed consent, and that Dr Basten was clearly conveying that he did not consider that Mr Ford was psychologically suitable for osseointegration surgery. It was put to Dr Al Muderis that Dr Basten’s opinion would have suggested that he should not have stated in the 11 June 2021 letter to the insurer that the “core and fundamental component of [Mr Ford’s] rehabilitation should begin with osseointegration”. As foreshadowed in the multidisciplinary section above, tellingly, Dr Al Muderis answered:

That is not what Dr Basten said. Dr Basten is a very experienced clinical psychologist, and he knows his limitation and his jurisdiction. He can comment on the psychological aspect of the patient, not on the rehabilitation aspect or the physical aspect of the patient. So I disagree with the statement.

761 Shortly thereafter, in answer to a question in cross-examination that Mr Ford exhibited limited insight into his own care (obviously based on Dr Basten’s report), Dr Al Muderis said he could not comment on that because he had not made his own informed decision.

762 Dr Al Muderis’ failure to accept in cross-examination that there were red flags, or that the conditions described gave rise to concerns in relation to performing osseointegration surgery, reflects adversely on him. The evidence also reflects his attitude towards the opinions expressed by others in his team (which has been discussed above). As the respondents submitted, the fact of a multidisciplinary approach being adopted in his practice was repeatedly highlighted by the applicant, as there was input from different experts. In that context, as noted in the multidisciplinary section above (see Part 6, Section 1), it is difficult to understand how Dr Basten would have exceeded his jurisdiction by advising against osseointegration as a means to rehabilitate Mr Ford. These answers in cross-examination showed a lack of respect for the expertise of others. They reflect that, from Dr Al Muderis’ perspective, the decisions were ultimately his to make (regardless of the opinions of others in his team to the contrary).

763 On the evidence, I am satisfied that Dr Al Muderis had recommended that Mr Ford was a suitable candidate for the osseointegration procedure. That further tests may have been conducted before the surgery occurred does not detract from the fact that a recommendation was made.

764 As Dr Stalley opined, given Mr Ford’s comorbidities (which Dr Al Muderis accepted existed), a recommendation to have osseointegration was a “terrible thing to do”. The premise underpinning Dr Stalley’s opinion is established. He opined the risks were just too great. I accept his evidence.

765 On the evidence, I am persuaded that Mr Ford was not a suitable candidate for osseointegration surgery.

766 Mr Ford ultimately did not undergo osseointegration. The osseointegration surgery proposed by Dr Al Muderis was rejected by the personal injury commission as being a not reasonably necessary treatment: Ford v Narrabri Shire Council [2022] NSWPIC 119 (Ford). That is a fact which explains why the surgery did not proceed. I do not rely on the conclusion for any purpose of truth defence, but I note the judgment is relevant to the s 29A defence.

Patient X

767 This patient was referred to as Patient X in these proceedings. She had a left transtibial amputation in May 2020. She underwent right below-knee amputation and transtibial osseointegration with Dr Al Muderis on 11 December 2021. On 10 August 2022, she underwent left transtibial osseointegration with Dr Al Muderis’ colleague, Dr Alttahir.

768 Patient X was 34 years old when she first consulted Dr Al Muderis and his team in September 2021. She has an extensive list of comorbidities including severe anorexia nervosa, starting when she was 15 years old, and a history of excessive exercise and non-compliance with medical guidance. The extent of the issue is apparent from the fact that she was, at some point, placed under a community treatment order.

769 Although the respondents ultimately relied on this case study as being relevant to proof of the truth of several imputations, the crux of the issue in her case study was her suitability for surgery.

770 Moreover, Patient X was not called to give evidence, despite the applicant filing an affidavit in her name. That necessarily limits the scope of the consideration of her case and its relevance to broader imputations.

771 Patient X’s September 2021 consultation with Dr Al Muderis was four months after Mr Ford’s first consultation. The respondents rely on these cases as “the two paradigm examples” of Dr Al Muderis recommending (and in Patient X’s case, performing) osseointegration surgery for patients who were said not to be suitable. As with Mr Ford’s case (see above), there were other medical professionals who raised concerns as to Patient X’s suitability for surgery.

772 I note these cases occurred not long before the Publications, in a context where the evidence was that Dr Al Muderis’ practice expanded over time to include patients that he would not have previously accepted as being suitable to undergo osseointegration surgery.

773 Dr Ross Hawthorne was involved in Patient X’s care in 2020. He is a Rehabilitation Medicine Practitioner who has been employed by the Sydney Local Health District and its previous entities for over 33 years. He has been the Head of Department of Rehabilitation Medicine at Concord Repatriation General Hospital since 1999. He has conducted a prosthetic clinic at the Royal Prince Alfred Hospital for around 25 years. It was in that latter context that he met Patient X, whom he consulted on 13 August 2020, approximately three months after her left below-knee amputation.

774 During cross-examination, Dr Hawthorne described Patient X as an:

exceedingly difficult patient, an extraordinary patient, a unique patient that had suffered an amputation, was looking at bilateral amputations at such a young age with … essentially anorexia nervosa as the cause of those amputations.

775 Ms Geada is a clinical prosthetist at APC Prosthetics, who was also involved in the care of Patient X. She started in her current role at APC Prosthetics in September 2017 and met Dr Al Muderis shortly thereafter. She had worked on Dr Al Muderis’ cases with him from time to time. Although the applicant relied on her evidence as to his standard practice, it is very brief on that topic. Her evidence in cross-examination principally related to her involvement with Patient X and Dr Hawthorne.

776 Given the issue in this case study, it is necessary to consider the events leading up to the surgery, in part at least, in chronological order.

777 On 30 September 2021, Patient X attended her first consultation with Dr Al Muderis and his team. Her medical history, including an extensive list of comorbidities, are summarised in a letter sent to her GP on behalf of Dr Al Muderis that day. This letter concludes, “[w]e can offer her an osseointegration implant on the left side to deal with her soft tissue problems. For the right leg we think we need to do a staged procedure”. It also recorded that Patient X “is mobilising indoors with a wheeled frame”, and that “[o]n examination she has a limping gait”. This is inconsistent with Dr Al Muderis’ evidence that Patient X was “wheelchair bound” when he first consulted with her.

778 Patient X’s medical history and conditions are also detailed in Dr Basten’s report of the same date, which Dr Al Muderis accepted was reported to him. The report describes, inter alia, that:

The eating disorder remains severe. … [Patient X] still exercises a minimum of three hours a day (e.g. three hours on her indoor training bike and will often cycle outdoors as well). [She] would find it extremely hard (probably impossible) to comply with instructions to exercise less or eat more if that were required for medical reasons.

779 Dr Basten opined that Patient X “needs more information to make an informed decision”.

780 In evidence is an email chain commencing 7 October 2021 involving Patient X, Mr Ward of Innovo Prosthetics (Patient X’s prosthetist at the time), and Ms Geada. An email Mr Ward sent to Patient X and Ms Geada that day reflects his concerns about her undergoing osseointegration, given her medical history. He recommended that she “have the OI team consult with your rehab consultant Ross Hawthorne”. In response, Patient X said she has not met Dr Hawthorne, and will have Dr Sanjeev Gupta (who, she explained, “has done all my previous surgeries for both legs”) consult with Dr Al Muderis and Dr O’Carrigan. Mr Cameron Ward urged her to “discuss all options with Dr Gupta before proceeding with any surgery”.

781 In a later email of 8 October 2021, Patient X wrote to Ms Geada, removing Mr Ward from the chain:

I spoke with Tim O’Carrigan yesterday regarding the future outcome of potential ankle reconstruction and he has advised that after looking at my CT scans the likelihood of surgery being successful and healing etc would be very poor and together agree that going forward we will firstly perform osseointegration on my left leg and straighten my right knee and then once healed will also have osseointegration on my right leg / ankle.

If [Mr Ward] feels uncomfortable remaining my prosthetist with this decision I would appreciate your help and support finding one that will?

782 Patient X was obviously aware of concerns Mr Ward held about her proceeding with the surgery.

783 On 28 October 2021, Dr Al Muderis attended a discussion about Patient X. Patient X attended the clinic that day. The report to her GP records:

We had a discussion with the Limb Reconstruction Team including Professor Munjed Al Muderis, Dr Razvan [Stoita], Dr Mustafa Alttahir and our Psychologist Dr Chris Basten to see if we can go ahead with the operation. The consensus of the group is that there are no good reconstruction options for her foot. The patient prefers osseointegration in both legs. The psychologist support team thinks that she is good to go through surgery.

We will plan her for a right below knee amputation, high tibial osteotomy and bilateral tibial osseointegration in one operation. We will address her shoulder problems at a later stage.

784 Dr Al Muderis accepted the focus of the discussion about whether Patient X should proceed with the surgery was on mobility. The applicant submitted the group concluded that the consensus was that there were no good reconstruction options for her right foot, and that it was reasonable for her to have a right below-knee amputation and bilateral transtibial osseointegration. I return to that submission below.

785 Dr Basten wrote a report to Dr Al Muderis dated 3 November 2021, describing a meeting with him and Patient X the week prior (the report’s terms suggest the meeting occurred on 28 October 2021). Dr Basten wrote:

[Patient X’s] drive to restrict food and to exercise ritualistically is likely to be present as soon as she is physically able to exercise and this could compromise her post-operative rehabilitation.

On seeing her again last week, I noted a deterioration in her foot such that she can no longer walk at all and cannot even use her exercise bike. I think that this shifts the appraisal of risks. The dangers of compromised post-operative care are still present. However, they are predictable and manageable. On the other hand, there is a 100% chance of impaired quality of life to leave both legs as they are without operating. Thus, it seems reasonable and wise to tolerate and manage the risks posed by her chronic eating disorder. I suggest that the team obtains a written contract from [her] that she will only exercise as prescribed by her physiotherapist and surgeon.

786 There were several communications between Patient X and the LRC shortly after 28 October 2021, which the respondents submitted raised red flags.

787 On 31 October 2021, Patient X emailed Dr Al Muderis:

Thankyou for allowing me the chance to meet you and your team and not simply write me off as having too many medical red flags like many have done before. I connected with your personal experience with trauma and discrimination and how you have overcome it all to pioneer life changing medical technology. I too would like to leave a legacy that benefits the greater good and so wish to volunteer for any future osseointegration techniques that you are currently working on? I am happy to sign any waivers necessary and hope that my complex medical morbidities will be useful despite the risks involved?

I am especially keen to try a faster loading process for my bilateral surgery and understand my bones might fracture as a result? Either way if there is any way I can help I would love to volunteer?

788 On 1 November 2021, Patient X received an email from Ms Connie Gambra, a nurse with the LRC, confirming her surgery was booked for 11 December 2021 and that a pre-surgery consultation was scheduled for 30 November 2021. I note Ms Gambra requested certain forms be read, signed and returned to the LRC, including a “copy of the risks of osseointegration”. Patient X responded the next day, with the email (according to its contents) attaching signed copies of the estimate of fees form and risk of osseointegration form. Neither document is in evidence. Nonetheless it is obvious that she signed and returned the risks form in circumstances where no surgeon (or medical professional) assessed her understanding of the form, or its contents. The LRC nevertheless received a signed copy of the document wherein, one may infer, Patient X claims to understand the risks of surgery.

789 On 3 November 2021, Patient X sent an email to Ms Gambra as part of this chain:

Is there anyway I can possibly meet with Munjed before my surgery as I’m worried that I am being selfish and rushing into major surgery when I’ve only been an amputee for a little over months. I’ve been told by many others that I should be patient with my knee socket despite the ongoing pressure sores and wait for many more years before getting OI and whilst I don’t necessarily agree I am concerned that Munjed also agrees that I don’t really need OI compared to most others?

Now please don’t think I’m being ungrateful as I understand how valuable Munjeds time is but I did honestly feel that the decision to do OI on both legs at the same time was rushed and the significance of the trauma I will experience especially trying to cope once home alone without legs for 6 weeks wasn’t discussed? I know that Munjed cares greatly about his patients but I never really got a chance to speak with him one to one and fear that he doesn’t really know my particular circumstance and struggles I will face (as I don’t have any family support and solely rely on NDIS providers)?

I’m sorry if this sounds selfish and if it’s not possible to see Munjed before surgery I still wish to proceed and will simply stop complaining and trust he knows my personal circumstance.

I also just need to check if the estimated fees for surgery include Munjeds personal fees as in my initial meeting after seeing the extensive damage to my body he said he personally would not charge me? However if he has since changed his mind I totally understand and am in the process of accessing the money my mother left for me so should hopefully be able to pay in a couple of days time?

Again please don’t think I am ungrateful as I feel honoured to have met Munjed and still wish to proceed with surgery but have a few more questions to ask beforehand so I can best plan for support after?

790 Later that day, Patient X had a telephone call with Ms Gambra. Ms Gambra’s note of the call recorded booking an appointment with Dr Al Muderis for 18 November 2018, “as [Patient X] feels she is rushing into surgery and [didn’t] get a 1 on 1 with [Dr Al Muderis] to go through the surgery.” Ms Gambra also recorded informing Patient X that although there would be no out-of-pocket expenses for the procedure, the external componentry is not covered by insurance, and that “she will need 2 of these” as she is undergoing bilateral surgery.

791 I accept the respondents’ submission that there were red flags. They were plainly evident, particularly given what was known about the state of Patient X’s mental health. As the respondents submitted, Patient X was effectively offering herself to Dr Al Muderis as a form of a human guinea pig in her 31 October 2021 email, whatever the personal costs, and then, three days later, indicated grave hesitation and reluctance to have the surgery. She felt she was “rushing into major surgery when” she only recently became an amputee, and “that the decision to do OI on both legs at the same time was rushed”. That sentiment is not surprising. Her first consultation with Dr Al Muderis was on 30 September 2021, the decision for single-stage bilateral surgery was made on 28 October 2021, and her surgery was confirmed four days later for 11 December 2021. Patient X, uncertain as to where she would recover from the surgery, said there was no discussion as to how she would manage at home in circumstances where she lived alone and lacked family support.

792 There are several further points to be made about these emails. First, Patient X declared a personal connection with Dr Al Muderis given his history, and that she was inspired by him to offer herself in the way she described. She talked of being honoured to have met him. Second, she was aware that she had a complex history such that Dr Al Muderis was offering her treatment that other doctors would not. Third, despite her concerns, she did not want to trouble Dr Al Muderis. She trusted him to the extent that she was prepared to proceed with surgery even if she could not see him beforehand to discuss those concerns. Fourth, it is obvious that others were warning her about undergoing the surgery. For example, she wrote, “I’ve been told by many others that I should be patient with my knee socket despite the ongoing pressure sores and wait for many more years before getting OI”. There is evidence that she was receiving such warnings, as explained below.

793 I agree with the respondents’ submission that Patient X’s correspondence during this period should have raised concerns with Dr Al Muderis as to her capacity to give informed consent. The applicant’s submissions are entirely silent on these communications and Dr Al Muderis’ evidence about the 3 November 2021 email. There is no evidence of anything having been done to address the issues as to consent that arose. I note also that it is apparent from this correspondence that although a surgery date had been set, and consent asked for and obtained, Patient X had not been provided with information about rehabilitation. It is difficult to understand how informed consent can be obtained without a patient being aware of such relevant information.

794 Patient X attended the appointment scheduled for 18 November 2021. Dr Al Muderis’ report describes a decision to proceed with surgery on her right side only (being amputation and osseointegration), with a view to osseointegration on her left leg “maybe six months after the first operation”. Continuing with the right side only was said to be wise because Christmas was approaching and her housing issues were unresolved. Dr Al Muderis performed right below-knee amputation with osseointegration on 11 December 2021.

795 Dr Al Muderis’ evidence in relation to the email of 3 November 2021 and the circumstances of the change of plan was unsatisfactory.

796 In cross-examination, when pressed about Patient X’s concerns of the scheduled bilateral surgery, Dr Al Muderis gave evidence that he had no intention to perform bilateral surgery, and that Patient X was mistaken. Yet the documentation supports that that was the plan as of 28 October 2021. It was the surgery which had been booked.

797 The applicant submitted that on 28 October 2021, Drs Al Muderis, Stoita, Alttahir and Basten reached a consensus that it was reasonable for Patient X to have bilateral surgery. Concerningly, when Dr Al Muderis was pressed in cross-examination on his intentions for surgery, his response was that he “always” intended to only do surgery on the right leg, and that the report of 28 October 2021 was “the conclusion of the team”, explaining “it’s a team decision, and the team wanted to do that”. That answer only raises more questions. If that was his intention as the surgeon responsible, the group consultation was meaningless. That is, the team’s decision had no practical bearing on the surgery he would ultimately perform. It also means the terms of the consultation report which was sent to Patient X’s GP that record “we [the Limb Reconstruction team] will plan her for a right below knee amputation, high tibial osteotomy and bilateral tibial osseointegration in one operation”, is inaccurate. Moreover, his evidence was that he “always wanted to do the right leg. I didn’t want to do the left leg … that was my intention. I thought the left leg can be left alone” (emphasis added). That evidence sits uncomfortably with his first consultation report of 30 September 2021, in which he advised “[w]e think it will be wise to start with the osseointegration on the left side”.

798 I consider it more likely that Dr Al Muderis’ intention on 28 October 2021 was to perform surgery on both legs. Patient X expressed concerns of undergoing bilateral surgery to Dr Al Muderis’ clinic in her 3 November 2021 email and, it can be inferred, with Dr Al Muderis directly on 18 November 2021. The plan to perform bilateral surgery was abandoned that day. Dr Al Muderis’ evidence that he never intended to perform bilateral surgery was to overcome questions put to him in cross-examination, that were critical of his conduct. Patient X had no misunderstanding. I do not accept Dr Al Muderis’ evidence.

799 As is clear from Patient X’s email of 3 November 2021, she had been receiving advice from third parties. One such person was her doctor, Dr Gupta.

800 On 18 October 2021, Dr Gupta wrote a letter to Patient X’s GP, having reviewed her “a few times over the last two weeks”. He expressed his concern about her undergoing osseointegration, giving several reasons. He recorded that she was considering getting a second opinion (he suggested Dr Huang and Dr Wines) and advised that she discuss the matter further with Mr Ward and Dr Hawthorne.

801 Dr Mark Horsley, an orthopaedic surgeon and a recipient of Dr Gupta’s letter, sent a letter in reply on 3 November 2021. Noting he had reviewed Patient X at least twice, he raised serious concerns about the surgery proceeding and recommended she obtain a second opinion.

802 On 18 November 2021, Ms Geada saw Patient X, as she was referred to her ahead of the surgery, now planned for her right side. She sent an email to Dr Hawthorne and others the following day, explaining that Patient X was scheduled for surgery and wrote, “I believe I share a few of your concerns and I don’t even know the whole story”. Dr Hawthorne responded that day:

This is dreadful news as we discussed. I believe that this is an appalling decision. I think we should do anything we reasonably can to stop it. I will try and contact Munjed next week when I get my thoughts more organised.

803 On 21 November 2021, Dr Hawthorne, feeling he was in an ethical dilemma, sought advice from the then medical director of the NSW Medical Council. His evidence was he was told there was little the Council could do, especially as the surgery was imminent, but that he should consider making a complaint to the Australian Health Practitioner Regulation Agency (AHPRA), which he did the following day.

804 On 2 December 2021, Dr Hawthorne wrote to Dr Al Muderis setting out his concerns about the proposed surgery (and posted the letter). He opined that Patient X was an inappropriate candidate for the surgery and that it should not proceed. His evidence was that the dual purposes of the letter were to resolve (what he felt was) an ethical obligation, and to inform Dr Al Muderis “that at least one doctor out there was of the opinion that this was absolutely the wrong thing to do”.

805 As the respondents submitted, following the surgery, those treating Patient X started to experience the very issues with her rehabilitation that had been discussed before the surgery. Issues with over-exercising arose repeatedly. Ms Bridget Dean, a physiotherapist, left a note in Patient X’s hospital file on 20 January 2022, “NOT TO TAKE FOOT HOME”. On 25 January 2022, she recorded, “NOT TO TAKE FOOT HOME OR STRONGLY ENCOURAGE NOT TO USE LEG, over doing it is how she lost her legs”.

806 It was put to Dr Al Muderis that the 25 January 2022 note was consistent with the concern that Patient X was prone to over-exercising. Instead of accepting the obvious, he was dismissive of the suggestion, suggesting instead that the note was merely the physiotherapist’s view.

807 That Ms Dean repeatedly left notes of that nature in subsequent consultations, culminating in a note on 8 February 2022, “[l]eg has been left at physio to prevent use at home”, reflects ongoing issues with Patient X’s compliance. Ms Geada gave evidence she was concerned during this period that Patient X was not following instructions in respect to how often she should use her prosthetic leg.

808 I note that Dr Al Muderis’ consultation report of 3 February 2022 recognised that Patient X was “doing a bit too much loading”, and advised, “based on the advice of” Ms Dean and Ms Geada, that her leg be taken from her. The respondents submitted this was an admission by Dr Al Muderis that the physiotherapists’ concerns were very real and valid, despite his resistance to such a proposition during cross-examination. I agree.

809 By February 2022, Patient X had experienced issues with infections, swelling and non-compliance. When these issues were put to Dr Al Muderis in cross-examination, he was argumentative, asserting many patients experience infection and all experience swelling. He denied that Patient X had been non-compliant to the point that her leg had been taken away from her on his advice. He said Patient X was “extremely happy with her right side of osseointegration” and she proceeded with surgery for her left leg in turn. He repeatedly volunteered, Patient X was wheelchair-bound “when she came to” him and “is now fully active”. As referred to above, his evidence of her being wheelchair-bound at that time is inconsistent with the consultation report. I note she required further surgery on her right leg in April 2022 (which included treatment for infection), such that Dr Al Muderis deferred the surgery to her left leg. She continued treatment for infection in May 2022.

810 The left leg surgery was performed by Dr Alttahir on 10 August 2022. Despite Dr Basten advising on 23 June 2022 that there are no psychological problems that the team would need to consider ahead of surgery, a hospital note dated 14 August 2022 flagged Patient X “for review of Dr Basten before discharge due to suicidal ideation and feeling depressed”. Ms Geada gave evidence that in November 2022 and February 2023, Patient X was not complying with rehabilitation instructions.

811 On 14 April 2023, Dr Rishi Narasimhan of the LRC sent a letter to Dr Tillman Boesel, a rehabilitation specialist, writing, inter alia:

[Patient X] is an extremely high risk candidate for any upper limb surgery given her physiological status and her poor wound healing capacity and general poor nutrition. I do not think [she] would be suitable for a reconstruction procedure including a reverse shoulder replacement at this stage.

812 That same day, Patient X emailed Dr Al Muderis’ office saying she was “keen to start running again” and asking for clearance from Dr Al Muderis, which he subsequently gave.

813 The respondents submitted that Dr Stalley was candid that an assessment of Patient X’s suitability for surgery would require an assessment of information beyond that briefed to him, including psychiatric, functional, skin and infection assessments. Dr Stalley was only briefed with Dr Hawthorne’s affidavit. That said, his evidence was that he shared Dr Hawthorne’s anxieties and noted there were red flags in Patient X’s presentation. He opined:

Patient X … was, according to Dr Hawthorne’s description, a keen runner but suffering from longstanding anorexia nervosa. This leads to poor bone quality, multiple fractures, poor wound healing and often, non-compliance with medical advice. All of these things would be red flags for someone recommending osseointegration. I accept that evidence.

814 Although the respondents also relied on the evidence of Dr Geffen, it does not assist on this topic.

815 The applicant was highly critical of Dr Hawthorne’s conduct, suggesting to him in cross-examination that his complaint to AHPRA was to denigrate Dr Al Muderis. That was despite Dr Hawthorne having already explained his ethical dilemma, and that he felt he had a legal obligation to make the complaint.

816 As noted earlier, Dr Hawthorne sought advice from the medical director of the Medical Council of NSW, who advised that there was little they could do, and suggested he might submit a complaint to AHPRA. Dr Hawthorne agreed he did not email his letter (dated 2 December 2021) to Dr Al Muderis or send it to his clinic and ask them to give it to him urgently. It was put to him that if he really wanted Dr Al Muderis to be aware of his concerns, prior to proceeding with the surgery, he would have communicated with him in a more urgent fashion. Dr Hawthorne said that Dr Al Muderis was already aware of all the concerns that he put in the letter and was going ahead anyway. He was also criticised for breaching Patient X’s confidence.

817 I accept Dr Hawthorne’s evidence as to why he did not call Dr Al Muderis. Apart from being daunted by the prospect of calling Dr Al Muderis and having been cautioned about him being extremely litigious, he considered it futile to do so.

818 Dr Al Muderis was aware, given what Patient X raised in her 31 October 2021 email, that other clinicians had declined to perform surgery on her, and she understood that he was prepared to do what they were not. There appears to be no evidence that Dr Al Muderis sought to speak to any of her previous treating team (and the applicant does not suggest otherwise). As the respondents correctly submitted, Dr Al Muderis was dismissive of those clinicians’ underlying concerns, giving evidence that: the problem with Patient X was that “she has been mismanaged” and “severely neglected”; “she may have been misled to believe that she’s too complicated, but she was not too complicated”; and that other clinicians who had been unwilling to treat her were under-skilled.

819 Dr Hawthorne was an honest, credible and reliable witness. I accept he felt he was in a dilemma as to a legal obligation to report. He was not the only person who had concerns about performing osseointegration on Patient X. Dr Gupta, Ms Geada and Dr Horsley also held those concerns. The concerns each of those parties expressed as to Dr Al Muderis’ decision to proceed with the surgery are entirely reasonable.

820 Ms Geada gave evidence that she held the view Dr Hawthorne and Mr Ward should be kept informed as to what was occurring with Patient X in relation to any medical procedures being considered or discussed. This was apparent in her email exchange (noted above) with Dr Hawthorne (amongst others) both expressing concerns about Patient X undergoing osseointegration, and informing them about what was occurring. Ms Geada gave evidence that she decided to contact Dr Hawthorne about Patient X because he had initially referred Patient X to them (as her rehabilitation consultant) when she first became an amputee. Therefore, he was to be kept informed of what was happening, as he was Patient X’s consultant for her whole life, regardless of whether she had osseointegration or otherwise. Ms Geada’s evidence reflects she respected Dr Hawthorne and his advice. Her evidence reflects that after both the first surgery and second surgery there were repeated concerns about Patient X’s non-compliance with her instructions in relation to rehabilitation. That is, Patient X was not complying by doing more than the protocol permitted (e.g. over-exercising and not using her crutches when she was required) which had consequences for her (as mentioned above).

821 I note an osseointegration brochure in evidence, “Osseointegration: The Australian Experience” (discussed above in relation to the brochures in Part 6, Section 1), lists non-compliance and mental instability as exclusion criteria. Accepting that this was published circa-2016, it is difficult to see how the non-compliance and mental instability criterion could change over time. The underlying reason for excluding patients with a history of non-compliance is obvious, with such patients facing serious ramifications if they have the surgery. Dr Al Muderis was warned of Patient X’s history of non-compliance. Dr Basten’s 30 September 2021 report included that Patient X’s “anorexia nervosa was severe enough and her ability to accept treatment so poor, that [she] was placed under a community treatment order several years ago.”

822 The applicant submitted that the potential issues Dr Hawthorne identified with Patient X’s suitability for surgery in his affidavit were specifically considered by Dr Al Muderis and his team in their assessment. He further submitted that there is no evidence to conclude that the assessments were inadequate or improper in any way, or that the group’s conclusion – that her issues were able to be successfully managed – was wrong. There is a circularity to that submission. It implies because the assessment was done, it was adequately or appropriately done.

823 Further, as the respondents submitted, there is no evidence of any careful consideration at the 28 October 2021 meeting of Patient X’s ability to manage post-operative instructions, or mechanisms that could be put in place pre-operatively to increase her prospects of a satisfactory outcome. Nor is there any reference in any of the LRC’s consultation reports prior to her first operation to steps to mitigate the risk of issues likely to arise given her history, or to address those issues should they arise (which would be expected, if the matters had been properly considered). As is apparent from Patient X’s 3 November 2021 email, by which time she had been assessed as suitable for bilateral osseointegration and her surgery had been booked, Patient X was uninformed of the rehabilitation process and whether she would be at home alone for that process. I accept the respondents’ submission as to these matters, and that a reasonable practitioner, given the circumstances, ought to have had them front of mind.

824 As the respondents submitted, Dr Al Muderis’ single focus appears to have been on mobility, in circumstances where a much more holistic analysis was called for. It bears similarities to Mr Ford’s case. Dr Al Muderis’ assessment of her suitability was lacking. I am satisfied that, in the circumstances, it was inadequate.

825 There were obvious red flags and contra-indications to surgery. Her precarious psychological state, as apparent from the emails recited above, was obvious. There is no evidence this was properly addressed (and having her undergo surgery on one leg, does not do so). She felt rushed, and given the speed with which this happened, that is not surprising. There was no urgency. That expressed concerns of others came to fruition after the surgery is similarly unsurprising, and Dr Al Muderis’ attempts to diminish those issues do not assist him. In April 2023, Patient X’s issues (which appear to be long standing, being her physiological status and her poor wound healing capacity and general poor nutrition) meant that she was not suitable for surgery on her shoulder. I also note the problem with Patient X’s wound healing issues that could lead to deep infection all being related to her nutritional problems was an issue raised by Dr O’Carrigan in his report of 7 October 2021.

826 The respondents submitted that Patient X was a witness in Dr Al Muderis’ camp, and in circumstances where he had filed an affidavit on her behalf but did not call her, the Court ought to infer that Patient X’s evidence would not have assisted Dr Al Muderis’ case. There may be reasons why Patient X was not called and exposed to cross-examination (particularly given her conditions). None have been proffered by the applicant. Although I accept that Patient X is in Dr Al Muderis’ camp, nonetheless, in these circumstances I am not prepared to draw the inference sought by the respondents. Her contemporaneous records speak for themselves (and they do not assist the applicant’s case). That said, Dr Al Muderis’ evidence of his view as to her current state, or her state of happiness at any time with the procedures, absent the witness being called, is of little, if any weight. Dr Al Muderis’ evidence as to his assessment of the successfulness of the surgery, or a patients’ happiness, as reflected in other case studies below, is generally inconsistent with the evidence (and is confined to mobility). In any event, as I have observed elsewhere, a patient’s contentment with the procedure does not address the issues for determination. It does not address the issues raised in this case study.

Section 4 — International patients

Mr Billy Wynne III

827 Mr Wynne lives in the United States. He had osseointegration surgery with Dr Al Muderis on 6 June 2018.

828 The applicant submitted that although Mr Wynne answered questions clearly and directly and purported to have strong recall of the events, he was not credible as a witness. He submitted that his account is “constantly contradicted” by the contemporaneous records and the inherent logic of the events to which he deposes. He submitted that Mr Wynne’s evidence should not be accepted unless it is an admission against interest or corroborated by reliable evidence. The applicant also submitted that it was clear “from the numerous corrections made to the section of Mr Wynne’s affidavit from [75] to [87], Mr Wynne has misremembered the chronology in serious ways, with numerous events being confusedly spliced together”. In addition, the applicant submitted that Mr Wynne’s last communication with him was positive. From that, it was submitted that Mr Wynne had concocted his complaints about Dr Al Muderis to support Mr Hernandez in his case against Dr Al Muderis.

829 I have considered the matters relied on by the applicant, and I do not accept the submission that Mr Wynne’s account is illogical or constantly contradicted by records. Mr Wynne was honest, credible, and his evidence was generally reliable. He was an impressive witness. His evidence, in many respects, is supported by other evidence. That at the outset of his evidence he corrected the order of some paragraphs in his affidavit does not alter that. There is nothing to suggest those events did not occur, rather there is evidence supporting that they did.

830 There is no evidence to support the submission that Mr Wynne concocted his evidence. I address elsewhere the fallacy that patients do not have complaints because their communications with Dr Al Muderis are otherwise positive: see The patients in Part 6, Section 1.

831 Mr Wynne lives in Oklahoma. While working as a flight paramedic in the United States in February 2013, his left leg was amputated below the knee following a helicopter accident. It was further amputated above the knee around one month later. He was in hospital for around six months following the accident and underwent approximately 20 surgeries. He was fitted with a traditional socket prosthesis after being discharged from hospital but experienced difficulties using it. He ceased work after the accident. Following a lawsuit against the helicopter company, he receives a monthly annuity.

832 Mr Wynne came across the Osseointegration Group of Australia online in late 2017. On 22 November 2017, he completed a contact form on their website expressing interest in osseointegration. Later that day, Ms Roberts responded and requested an x-ray of his femur so that Dr Al Muderis could assess how complex his procedure would be.

833 Mr Wynne’s evidence was that in early December 2017, he received a call from Mr Hernandez, who he understood to be the United States’ representative of Osseointegration Group of Australia. Mr Hernandez gave him general information about osseointegration with Dr Al Muderis. He began texting with Mr Hernandez after they first spoke, and he began to feel like a friend. Mr Wynne gave evidence that he did not know that Mr Hernandez might be getting a commission if he got surgery with Dr Al Muderis until after he had the surgery.

834 Mr Wynne sent x-rays to Ms Roberts on 5 December 2017. Ms Roberts replied that same day thanking him for his x-rays and saying, “I have spoken to Munjed and he agrees your procedure would be very do-able in a single stage operation”. Dr Al Muderis gave evidence that by that time he had formed the view Mr Wynne’s surgery “could be done in one stage”.

835 From 30 January 2018 to 5 February 2018, Mr Wynne and Ms Roberts corresponded to arrange for Mr Wynne to see Dr Al Muderis in New Orleans on 16 or 17 February 2018. In their emails, Ms Roberts noted that she had “included Fred Hernandez on this email stream who is coordinating this clinic with me” (emphasis added). Ms Roberts accepted that it was part of her role to arrange for Dr Al Muderis to see potential osseointegration patients in the United States and what she arranged was a clinic. I discussed earlier Ms Roberts’ and Dr Al Muderis’ evidence as to this topic: see Part 5 Section 5.

836 On 16 February 2018, Mr Wynne met with Dr Al Muderis in New Orleans. He gave evidence that Dr Al Muderis was holding appointments in a hotel room. He was unnerved because the room “appeared cheap” and there were other patients in the room when he arrived. He said Dr Al Muderis examined him there in front of the other patients. Dr Al Muderis asked him to remove his pants while the other patients remained in the room and could see. He said that Dr Al Muderis’ examination of him lasted no longer than one minute. During the examination he touched his leg. Dr Al Muderis told him that he had looked at his x-rays. He advised he could proceed with the surgery, saying words to the effect of: “You’re good, no problem. You got any questions?”. Mr Wynne told Dr Al Muderis that he was very concerned that the scar tissue on his leg would be an issue, and that any cutting on his leg does not heal and that made him scared. He said Dr Al Muderis told him that it was not a problem and that he could proceed with the surgery. Mr Wynne asked Dr Al Muderis about the cost wherein Dr Al Muderis showed him a price sheet for someone else, with a total price of AU$110,000. Dr Al Muderis told him that his costs would be “really close” to this, and asked him not to show the sheet to others. Mr Wynne took a photograph of the price sheet.

837 Mr Wynne gave evidence that there was no discussion of risks of the procedure. His evidence was that he “noticed this because there were always risks discussed before the 20+ surgeries I had previously undergone”. Mr Wynne explained that, had Dr Al Muderis been an American doctor, he would have declined to proceed; “there were red flags everywhere”. He said that he told himself that Dr Al Muderis is from Australia, where things might be done differently. He thought that the procedure looked amazing and so tried to rationalise the conduct.

838 Dr Al Muderis accepted it was possible the meeting took place in a hotel room, and that there were other patients there when Mr Wynne arrived. He denied that he had: asked Mr Wynne to remove his pants; examined his leg (but conceded he may have looked at it); said to Mr Wynne “you’re good”; and shown Mr Wynne a price sheet. He could not recall whether Mr Wynne had raised concerns about his extensive scar tissue and the ability of any wound on his leg to heal, or whether there was any discussion about risks and complications.

839 The applicant’s submission that Mr Wynne’s account of the events at the hotel should be rejected appears to be based, for a significant part, on Dr Al Muderis denying the events. The applicant gave additional reasons for rejecting Mr Wynne’s evidence, including:

(1)    it does not make sense that Dr Al Muderis requested Mr Wynne to strip to his underwear in front of other patients because: Dr Al Muderis had already reviewed the x-rays and found Mr Wynne to be suitable for single-stage osseointegration (subject to the usual checks in Australia) and so there was no need for him to examine Mr Wynne at that time; it is inherently unlikely that any doctor would do that, and there is nothing to suggest otherwise in the evidence that Dr Al Muderis would do it; and that it wholly lacks corroboration;

(2)    it does not make sense that Mr Wynne would agree to such a request. He is an adult male who presented as being assertive and mentally sound. There are few men of that description who would agree to strip to their underwear in a hotel room in front of people they had never met;

(3)    although Mr Wynne gave evidence that he saw “red flags everywhere” but nevertheless tried “to make it work in [his] brain”, he did not convey so much when he described the meeting to Ms Roberts in a 27 March 2018 email; and

(4)    that Mr Wynne said that he called and texted Mr Hernandez after he left the hotel room to share that he was a candidate for osseointegration does not make sense, as he had already been told that months earlier by email.

840 Pausing there. I accept Mr Wynne’s evidence of what occurred in the hotel room in New Orleans. His evidence is supported by other evidence. This includes the email from Ms Roberts arranging his attendance at the clinic (see [835] above), and documentary evidence in relation to other clinics she organised which were held in the United States in the same circumstances (and see Dr Al Muderis’ letter to Mr Bruha’s insurer in his case study below): see also Ms Roberts evidence discussed in Part 5, Section 5.

841 In the circumstances in which this clinic was conducted and given its purpose, I do not consider it illogical or improbable that Dr Al Muderis asked Mr Wynne to remove his pants to enable him to examine his leg. Nor is it illogical or improbable he complied with the request. I accept that Mr Wynne was given medical advice, being told he could proceed with the surgery.

842 After Mr Wynne left the hotel, he spoke to Mr Hernandez. As he was staying in New Orleans until the next day, he asked what Mr Hernandez was doing that night and whether he could come along. Mr Hernandez then invited him to join him and other osseointegration patients for dinner. Mr Wynne said he was sold on osseointegration with Dr Al Muderis after the dinner, having seen how well those patients walked compared to him.

843 Mr Wynne contacting Mr Hernandez after leaving the clinic, in the circumstances he describes, is not unusual or improbable. This was the first time he had seen Dr Al Muderis. There is no evidence of any direct contact with him before this time. Dr Al Muderis had told him he was able to have the surgery. To share that with the person who he considered a friend, is logical. His evidence that he asked and was told about the costs, and that it should be kept confidential, is consistent with the evidence of other witnesses (e.g. Mr Smith). As noted above, he photographed the price sheet he was shown by Dr Al Muderis (which is in evidence).

844 However, Dr Al Muderis did not arrange for Mr Wynne to be at the dinner with the other patients, rather Mr Wynne had asked Mr Hernandez what he was doing that night. Mr Hernandez’s invitation to dinner was in the context of his role with Dr Al Muderis. The result was that Mr Wynne socialised with Dr Al Muderis and some of his patients. As discussed elsewhere, that he socialised with Dr Al Muderis in attending the dinner disturbs the balance of the doctor-patient relationship.

845 On 27 March 2018, Mr Wynne sent Ms Roberts an email explaining, inter alia, that he would like to proceed with the surgery. Ms Roberts replied on 10 April 2018, confirming availability for surgery on 6 June 2018. She described the estimate of fees for the procedure, which align with the figures in the “price sheet” Dr Al Muderis had shown Mr Wynne in New Orleans.

846 In the 27 March 2018 email, Mr Wynne also requested a discount on the implant, explaining he will otherwise have to delay surgery by a year. Ms Roberts replied:

I discussed it with Munjed who is compassionate and does not want finances to delay surgery so he is willing to help by the following: (taking into consideration that the only fee that Munjed can control is his own surgical fees)

- Prior to the surgery you transfer $84,000 AUD (to pay for anaesthetics, hospital fees, implant, tool kit, pain specialist, general physician, psychologist, physiotherapist, prosthetist, accom[m]odation and medical-related transport)

- I have attached a breakdown in the Estimate of Fees, as you can see the surgical fee (Munjed and team) is $26,000 AUD. He has kindly offered for you to pay off this remaining amount ($26,000AUD) in installments over a year after the surgery

- The reason being - because the implant company is not as compassionate and cannot lower the cost of the implant price.

(emphasis in original)

847 I note that the estimates of fees provided to some of the domestic patients disclose that Dr Al Muderis is the sole shareholder of the companies which owns the rights to and distributes the OPL implants, and that he may receive a financial benefit from their sale. It is from his company that Mr Wynne received an OPL implant.

848 When Ms Roberts saw the 27 March 2018 email, she was in no doubt that Mr Wynne understood he was clear to proceed with the surgery.

849 On 22 April 2018, Ms Roberts sent Mr Wynne pre-admission paperwork and a pain survey, including a letter headed “Hospital Admissions Information” confirming surgery for 6 June 2018.

850 On 29 April 2018, Ms Zamani (Dr Al Muderis’ accounts manager) emailed Mr Wynne saying that she was “pleased to confirm that your surgery is scheduled for the 6th June 2018”, and attached an invoice that accorded with the payment plan Ms Roberts had detailed in the 27 March 2018 email above. In a 2 May 2018 email, Ms Zamani explained payment will need to be cleared before arriving in Australia, and to allow seven to ten working days for the transfer to complete. On 19 May 2018, Mr Wynne sent through a credit card authorisation for partial payment of the surgical fees. His emails with Ms Zamani indicate he wired the balance of the fees in early May. In other words, Mr Wynne’s surgery had been booked, confirmed, and paid for, before he had undergone any proper assessment. This all occurred before there was any discussion of the risks and complications of the surgery which, on Dr Al Muderis’ evidence, occurred in the consultation on 5 June 2018, the day before the surgery.

851 On 30 May 2018, Mr Wynne flew to Sydney with his family.

In Australia

852 On 4 and 5 June 2018, Mr Wynne had pre-operative tests and assessments, and a consultation with Dr Al Muderis. This was the first time he had seen Dr Al Muderis since New Orleans. Mr Wynne checked in with Ms Roberts and she walked him to Dr Al Muderis’ office. Dr Al Muderis introduced himself saying words to the effect of: “I’m Munjed Al Muderis. OK, you’re Billy Wynne and you’re here about osseointegration”. Mr Wynne gave evidence that Dr Al Muderis continued talking about osseointegration for about a minute and “everything he’s done in it”, before saying words to the effect of: “Is it something you would be interested in?”

853 Mr Wynne’s evidence was that he said to Dr Al Muderis he was there for surgery and his surgery was booked for the following day. He told Dr Al Muderis he had paid and that he had flown his family to Australia. Dr Al Muderis started looking through his papers and, as Ms Roberts passed by, he asked her who he was. She replied: “This is Billy, the one you met in New Orleans”. Dr Al Muderis said words to the effect of: “Oh, of course I know who you are”. Dr Al Muderis did not recall whether he had initially forgotten that he had met Mr Wynne. Mr Wynne gave evidence that this consultation was very brief. Mr Wynne, when challenged as to whether that exchange occurred, gave evidence that the interaction with Dr Al Muderis “was so profoundly shocking … I could see it right now”. Given the circumstances, Mr Wynne’s evidence of that exchange is plausible.

854 Dr Al Muderis’ evidence of the consultation relied on the consultation report. The applicant submitted the amount of detail in the consultation report shows that it must have lasted more than two minutes.

855 This consultation report, like others in evidence in these proceedings, includes many pro forma statements. I have addressed the issue of reliability of the reports elsewhere: see Part 6, Section 1.

856 Simply because something is described in the report as occurring, particularly if it is in pro forma language, does not necessarily mean that it did. I note there are errors in Mr Wynne’s report. For example, it states that Mr Wynne will be transferred to an inpatient facility for two weeks after leaving the hospital. The report also describes “a thorough discussion among the team” and a thorough interview and discussion between “the team and I” and Mr Wynne. Yet the team consisted only of Dr Al Muderis and Ms Roberts. These reflect the insertion of pro forma paragraphs as to what occurred.

857 Further, contrary to the applicant’s submission, that the consultation report refers to and describes x-rays does not necessarily mean Dr Al Muderis examined them in Mr Wynne’s presence. That said, I accept that the imaging documents in evidence say that they were ordered by Dr Al Muderis on 5 June 2018 and collected before the consultation that day. One of the topics of Mr Wynne’s cross-examination was whether Dr Al Muderis looked at his x-rays during this consultation. Mr Wynne said that could not have occurred because he did not have it done until after the consultation. Mr Wynne is mistaken about the timing of the x-rays.

858 I note that the consultation report suggests Mr Wynne had yet to pass a psychological assessment. Yet Dr Basten sent Dr Al Muderis his assessment of Mr Wynne on 18 May 2018, reporting “no major concerns that the team needs to be aware of”. On 19 May 2018, Dr Basten also emailed Dr Al Muderis, noting that Mr Wynne “seems fine” following their interview. Dr Al Muderis therefore appears not to have been aware that Mr Wynne had spoken to Dr Basten at the time of the consultation. Importantly, Dr Basten’s report said Mr Wynne “needs and deserves a little more information and reassurance than usual after a bad past experience with poor anaesthesia” (guidance which the respondents submitted Dr Al Muderis did not take into account). Dr Basten provided a similar warning in his 19 May 2018 email to Ms Roberts (which Dr Al Muderis was also sent).

859 Mr Wynne’s evidence was that Dr Al Muderis did not explain any risks during the pre-operative appointment. He gave evidence that Dr Al Muderis said he would not have an infection, but if he did, antibiotics were available. He said when he raised his concerns with Dr Al Muderis about the scar tissue on his leg, Dr Al Muderis said words to the effect of: “There’s absolutely nothing to worry about. You’re fine”. Dr Al Muderis showed him a picture of a patient he had operated on that had a burnt limb. He considered that Dr Al Muderis was dismissive of his concerns.

860 Dr Al Muderis initially said in cross-examination that Mr Wynne may have mentioned something about the scar and the healing but then appeared to have a recall that they then had a thorough discussion about that. He said that because Mr Wynne had “significant scarring on his leg and … significant burns”, he spent “significant time” talking to Mr Wynne about the healing scar. He said he remembered showing him a photo of another patient who had a “very lengthy healing scar … that had taken over a year to heal”. Dr Al Muderis said burn patients take a very long time to heal.

861 There is no reference in the consultation report to the scar tissue, the extent of it, or that he is likely to take a long time to heal as a result, something which was a pertinent matter if discussed. A matter which would be expected to be referred to in the report if the discussion occurred in the manner described by Dr Al Muderis. Rather, the report has the pro forma statement: “Billy does understand the risk of infection associated with this surgery however we regard Billy as relatively low risk. His procedure would be very standard”. Although Dr Al Muderis and Mr Wynne appear to agree that at some point Dr Al Muderis showed him a photograph of another patient who had a burnt limb, Mr Wynne suggested in cross-examination it may not have been during the 5 June consultation.

862 My Wynne’s evidence was that his biggest concern was his scar tissue healing, if cut, as this had previously been a significant issue for him. I accept that evidence. In that light, I accept that he raised this concern with Dr Al Muderis in the hotel in New Orleans and in the consultation in Australia. As a matter of importance to him, he is likely to remember Dr Al Muderis’ responses to his queries and his attitude towards it. I accept that it is probable that when he raised this, Dr Al Muderis told him that it was not an issue.

863 Mr Wynne gave evidence that for such a major surgery, he thought the pre-operative appointment should be more thorough. He had had approximately 20 operations in the United States where surgeons had been careful to explain risks to him on every occasion. According to Mr Wynne, this was the shortest pre-operative appointment he had ever had. He was concerned that Dr Al Muderis did not recognise him, and thought he was joking as he had flown half-way around the world, paid 80-90% of the costs of the procedure, and had a surgery date booked for the following day.

864 Mr Wynne, in response to the applicant’s suggestion that he had misremembered the entire interaction with Dr Al Muderis on 5 June 2018, replied, “it was so profoundly shocking … I could see it right now”.

865 Mr Wynne underwent osseointegration surgery on 6 June 2018. While Dr Al Muderis met with him immediately before the surgery, the interaction was brief: “If anything was explained, it was just reiterating ‘We’re doing osseointegration, above-knee, left side.’” Mr Wynne denied that Dr Al Muderis explained the risk of death, the risk of cardiac failure, or the risk of vascular problems. When asked in cross-examination if Dr Al Muderis explained to him the risk of pain after surgery, Mr Wynne replied “at that moment, no”, but supposed that they discussed it at some point. Mr Wynne denied that, in relation to the TMR procedure, Dr Al Muderis explained to him that the pain would get worse before it got better: “there was no conversation at all”. Mr Wynne said that he was asked for the first time at that meeting by Dr Al Muderis whether he experienced phantom pains in his legs, and Dr Al Muderis told him he could do a surgery for that but did not describe what the surgery was (Mr Wynne gave evidence that he assumed it was TMR surgery). I note TMR surgery is not referred to in the consultation report of 5 June 2018.

866 The operation report of 6 June 2018 contained the pro forma statement:

Patient was fully informed and has given consent for surgery. Patient is aware of all risks and complications of surgery such as general concern of anaesthetics including developing deep venous thrombosis and death. Patient is aware of specific complications of surgery such as nerve damage, vascular injury, wound infection, cardiac complications and pulmonary complication.

Post-surgery

867 Mr Wynne’s evidence was that on 8 June 2018, Dr Al Muderis removed his bandages. Text messages between Mr Wynne, Dr Al Muderis and Ms Roberts dated 8 June show that that afternoon, Mr Wynne reached out for help because his stump was swollen and hot, and he was experiencing nerve pain. Ms Roberts replied that it was not uncommon and organised for Dr Al-Jawazneh to see him in hospital. Dr Al Muderis also replied, advising Mr Wynne to elevate his leg above the level of his heart. Mr Wynne deposed that on or around 9 June 2018, he raised his concerns about infection again with Dr Al Muderis and Ms Roberts via text message; his evidence appears to be in relation to these 8 June messages. He separately deposed that by 9 June 2018, the end of his leg was getting red blood blisters and black skin was appearing. He believes this is where the tissue was dying because of the swelling. In evidence is a photo of his leg he sent Dr Al Muderis and Ms Roberts on the morning of 9 June, which appears to match that description. Dr Al Muderis responded, “[n]othing need to be done except monitoring”.

868 Mr Wynne was discharged on 11 June 2018 and experienced problems thereafter.

869 On 12 June 2018, Dr Al Muderis and Mr Wynne had a consultation, with the consultation report stating that his wounds “appear healthy. There is mild bruising and haematoma around the central portion of his wound without signs of infection”. However, the clinical consultation notes by Ms Dean that same day recorded that he “has been having trouble with nerve pain”, had “moderate swelling – burnt and skin graft makes hard to determine” and that he had a “[s]uperior abutment blood blister present approx. 6 cm long 1 cm width – need to monitor (pt advised of same)”.

870 Mr Wynne gave evidence that he returned to his hotel room that day, where he experienced severe pain that became unbearable. He texted and called Ms Roberts and Dr Al Muderis saying that he needed to go to the hospital and that he was about to call an ambulance. Ms Roberts told him not to go to the hospital and instead sent Dr Ho to his hotel room to take care of him. At that time the pain was so extreme Mr Wynne felt like he was dying. Dr Ho gave him a single injection into the spine for the pain (misdescribed originally as a spinal block). The metadata of a time-stamped photograph of Dr Ho during this visit states 12 June 2018, 6.37pm.

871 Mr Wynne’s evidence was the injection did nothing to help the pain in his leg and shortly thereafter, he called Dr Al Muderis and Ms Roberts again to let them know he had to go to the hospital. Dr Al Muderis called back and said words to the effect of: “I’ve got you a room at Macquarie University Hospital. You figure out your own way there”. He caught an Uber to the hospital. He said his leg was bleeding everywhere. Mr Wynne was admitted to hospital and stayed overnight. He was given a ketamine infusion, which he accepted was effective for his pain for a few days.

872 On 16 June 2018, he messaged Dr Al Muderis and Ms Roberts attaching a photograph of his stoma, asking whether he needed antibiotics because he was concerned it was infected. Dr Al Muderis responded that he should monitor it and that antibiotics were not the best option unless it was definitely infected. When shown the photograph during cross-examination, Dr Al Muderis said that it is “just bruising” from or after the surgery, “so it doesn’t look infected. No.”

873 On 19 June 2018, Mr Wynne was seen in Dr Al Muderis’ rooms, with Dr Al-Jawazneh preparing a report on behalf of Dr Al Muderis. It recorded that: “On examination his wounds look clean. There is mild oozing from his stoma and the stoma looked good and there is no signs of infection”. Mr Wynne’s evidence was he disagreed with Dr Al Muderis’ opinion on the possibility of infection. Mr Wynne recalled that Dr Al Muderis had said that there was “nothing to worry about”. Mr Wynne said Dr Al Muderis was against giving him antibiotics and assured him the redness and swelling would go down. Dr Al Muderis told him to soak his leg in Epsom salts and water every day.

874 Mr Wynne explained that because of his work as a paramedic for five to six years until his accident, “he developed something of an expertise” in responding to infections because many of his patients suffered from infections. Accepting this evidence, it follows that Mr Wynne is at least aware of and sensitive to symptoms of infections. His evidence that he believed he suffered from infections in the immediate aftermath of his osseointegration surgery with Dr Al Muderis, and that he disagreed with Dr Al Muderis’ assessment is in that context. He said Dr Al Muderis failed to diagnose those infections and, in that context, declined to administer antibiotics.

875 On 20 June 2018, Mr Wynne’s wife posted on Facebook that his “leg has been very swollen for the last few days, and [is] causing him a lot [of] pain”.

876 On 22 June 2018, Mr Wynne texted Dr Al Muderis and Ms Roberts, explaining his leg was swollen, sending a photo and asking for help. Five hours later, Ms Roberts replied, telling him to come to see Dr Al Muderis at the hospital. When shown these messages in cross-examination, Dr Al Muderis agreed that Mr Wynne was worried that his stump was swollen and therefore required attention.

877 Mr Wynne gave evidence he first saw Ms Roberts at the hospital, who told him his leg was not infected. He said he was concerned because Ms Roberts was not a doctor and had not looked at his leg.

878 The consultation report by Dr Al Muderis recorded that there were no clinical signs of infection, that Dr Al Muderis performed a wound clean, and that there were no concerning features. The report said that his stoma will take considerable time to heal due to previous damaged tissue which was burnt in the accident and required extensive grafting. Mr Wynne’s evidence of the consultation was that Dr Al Muderis scraped away the dead tissue off the wound, told him to keep soaking his leg, and that it would be fine. Mr Wynne gave evidence that he had previously had wounds smaller than this one that had taken over a year to heal and he felt like it was a big deal, although Dr Al Muderis did not act as if it was.

879 On 22 June 2018, Mr Wynne’s wife posted what the respondents described as “a sad and telling post to Facebook” detailing Mr Wynne’s pain and suffering and that they were continually being told he did not have an infection. That is an accurate description of the post. The post is entirely consistent with the evidence Mr Wynne gave as to his condition.

880 On 23 June 2018, Mr Wynne messaged Dr Al Muderis, saying his pain had been non-stop “since yesterday afternoon” and asking for help. Dr Al Muderis promptly arranged to see him that day at his clinic, recording in the consultation report that:

Billy contacted me regarding new onset pain yesterday evening which he was concerned about. I arranged for an urgent review in the clinic promptly between surgeries. I noted a clean stoma with normal bleeding, no signs of infection and no evidence of periprosthetic complications. I irrigated the stoma and am happy with the progress of Billy’s healing. I reiterated to Billy that his stoma will take considerable time to heal given his scarring.

881 On 24 June 2018, Mr Wynne and Ms Roberts exchanged messages about a boat trip. Mr Wynne advised that he could not attend because he had made other plans. Mr Wynne accepted in cross-examination that he did a “few touristy things” with his family around Sydney that day and that he was able to “get out and about”. To the suggestion in cross-examination that he felt better after his 23 June treatment from Dr Al Muderis, Mr Wynne said, “no. It was pretty touch and go … it [was] just manageable”, with some parts of the day being slightly better than others, but that “for the rest of the time in Australia it was pretty horrible”.

882 On 26 June 2018, Dr Al Muderis consulted with Mr Wynne. The report recorded, “he is progressing well and he is doing much better now and he is happy with the results”. He records “the wound is clean. I did some debridement today but nothing much, not like before”. Although Mr Wynne accepted that his wife’s Facebook post that day – in which she said he “has been feeling a little better the last couple of days. The doctors have gotten his pain under control” – was true, he pointed out that he remained in pain despite it being manageable. Dr Al Muderis continued to tell him his wound was not infected, but Mr Wynne did not believe him.

883 Dr Al Muderis consulted Mr Wynne again on 3 July 2018. The report recorded, “[o]n examination the wound is clean. We did some debridement about one week ago and now the wound does not look bad”.

884 Mr Wynne’s evidence was that he was furious during his last consultation with Dr Al Muderis and showed him how big the wound in his leg was. Mr Wynne accepted he probably did not express fury towards Dr Al Muderis, explaining that he was “completely depleted inside”. Mr Wynne said he told Dr Al Muderis that he knew the wound would take months or years to heal. Mr Wynne’s evidence was Dr Al Muderis disagreed and told him he was wrong and that it would heal in days or weeks, “absolutely not” months. Dr Al Muderis, in evidence, denied telling Mr Wynne his wound would take days or weeks to heal.

885 Either at that conversation or earlier, Dr Al Muderis showed Mr Wynne photos of another patient whose wound completely healed from a worse state than his. He showed him a photo of the wound post-surgery and a second photo of it healed. Mr Wynne recalled Dr Al Muderis saying the photos were taken two or three weeks apart. Dr Al Muderis’ evidence was that the photos were taken ten months apart.

886 To the suggestion that Dr Al Muderis said to him that he might need a skin graft, Mr Wynne explained:

I had been saying … since right after they took the bandages off that I believe that needed to be grafted, [and Dr Al Muderis replied,] “no. you don’t”, and there was the very last meeting, and he said, “… you may benefit from a skin graft.” And that was the first time he had ever mentioned it, and I remember sitting there thinking, “I’ve been saying this this whole time.” And he said, “But … it really will heal on its own.”

887 Mr Wynne gave evidence that Dr Al Muderis did not ask his doctors in the United States to coordinate his ongoing treatment. His evidence was that he thought there should have been a continuation of care plan and Dr Al Muderis should have coordinated with a plastic surgeon and wound care doctor in the United States to see the wound through its healing stages. Mr Wynne explained that by the time of the final consultation, he was convinced that Dr Al Muderis was “completely reckless” and he was ready to go home.

888 Mr Wynne returned to the United States on 11 July 2018. On 21 July 2018, he texted Dr Al Muderis and Ms Roberts with an update on his progress:

… Wound is clean, and continuing to close up nicely. The muscles in my leg are getting stronger, and my gait is improving daily. However, the greatest improvement, (that nobody can see), is the phantom/nerve pain I USE TO HAVE in that leg! It was a daily 12+ hours a day / 7 days a week! Ranging from 1/10 & what felt like rubbing a hair brush on the lateral side of my left phantom foot, to 10/10 & having the sensation of what felt like lightning bolts of electricity firing out of my phantom toes. Other than the few bad episodes of phantom/nerve pain on those first few days out of the hospital, it has COMPLETELY gone away! … Thank you again for everything!!

889 On 8 November 2018, Ms Roberts texted Mr Wynne, “... How is everything?” He replied on 9 November 2018, “... Good to hear from you! I’m doing well, the wound around the stoma continues to heal nicely!” He explained his wound had seen “quite an improvement”, sending a photo of it “from a few weeks ago” and a second “from the beginning” to demonstrate as much. He sent a further message:

Walking is incredible, so much easier now. And for the first time in over 5 years, I’m able to ride my bike with our kiddos! (something I tried over and over with the socket, but never able to do). I really hope Munjeds procedure takes off around the world, because this has truly been life changing!! Do you guys have any plans to be back in the USA any time soon? If so, let me know, I would love to meet up with you guys, to show you the progress. I hope you guys are doing well. Take care!

890 When put to Mr Wynne in cross-examination that the positive sentiment in his 9 November 2018 text messages to Dr Al Muderis was genuine, Mr Wynne explained:

… The procedure itself … is truly life-changing. … It has been the best thing that has ever happened to me. … there’s no question about that. … I really did truly hope osseointegration did take off around the world. …

Just to give a bigger picture, when I had this done, I was essentially married to Munjed … he’s the only person I could go to if I needed anything done. There’s no other [doctor] in the world, that I knew of … where I could go to for help. I was, in a sense, stuck with him. … it’s a messed-up situation. Even though … I felt that he was very reckless, I was also stuck with him. There’s that message I got from Claudia checking in. I didn’t get any sort of follow-up with Munjed. That was the only follow-up I got with Claudia. … it did feel like that relationship was dangling by a string, that if I wanted to keep the relationship going, I had to try hard … just to be able to ensure that I would get care for this part because without Munjed, I’m stuck. …

… I understand the way it looks like, and at the time I was on cloud nine about it. I was getting around better than I ever have. … I was truly happy, to an extent. There was still a good amount of pain, but walking around … was truly amazing. It was and is. …

… I did feel like I had to keep this relationship going to ensure I still had a doctor to take care of me because, especially when I left Australia, there was no connecting me with a doctor for wound care in America. There was no connection [for] care for my osseo part once I returned to America, and I felt like it was completely all on me to keep this relationship happy and alive …

It was a scary spot to be in.

891 I note that his sentiments are consistent with the evidence of other patients who are discussed below (see e.g. Ms Ulrich at [961], Ms Schaeffer at [1101] and Ms Koolhoven at [1119]). Mr Wynne separately deposed, “[w]hile osseointegration has been the best thing I had since my crash, I would not recommend my worst enemy to Dr Al Muderis”.

892 Mr Wynne gave evidence that he experienced ongoing issues with his leg upon his return to the United States. He has since suffered ongoing nerve pain. By August 2018, his primary physician had given him antibiotics on at least three occasions, and he said he was twice admitted to the emergency room to receive intravenous antibiotics for his leg. He said that each time he was put on antibiotics, it was due to the same symptoms he was experiencing in Sydney, namely redness, swelling and extreme pain in his stump. I note for completeness that after he had osseointegration surgery in 2021 on his right leg with Dr Stoneback, a United States-based surgeon, and he said was hospitalised for a serious infection.

893 Mr Wynne agreed that when he was given Dr Al Muderis’ and Mr Roberts’ contact details, he was told that he could contact them at any time, where he contacted them when he needed them, and they always responded to him.

894 In December 2018, August 2019, and September 2019, components of Mr Wynne’s osseointegration prosthetic limb broke. He reached out to Ms Roberts seeking assistance, and parts were promptly sent to him on at least the first two occasions.

895 The applicant submitted that Mr Wynne’s evidence as to ongoing issues with his leg after returning to the United States should be rejected. He submitted that evidence was inconsistent with the positive terms Mr Wynne used in his correspondence with Dr Al Muderis, his office and Ms Roberts after his return home. I disagree. I accept Mr Wynne’s explanation as to his feelings towards Dr Al Muderis and the position he considered himself to be in which, given the circumstances he found himself in, is entirely understandable. Mr Wynne, and other patients, were vulnerable and dependent on Dr Al Muderis. I note that these messages were sent in 2018. Further, there is no basis to equate those messages with there being no ongoing issues after he returned to the United States. He gave direct evidence that he was given antibiotics on multiple occasions, including intravenously when hospitalised, which he understood was administered because he was experiencing the same symptoms that he experienced in Sydney.

896 I am satisfied, amongst other things, that Dr Al Muderis failed to adequately advise of the risks and complications. When he met the applicant in the United States, no advice was given. I accept Mr Wynne’s evidence as to his pre-operative consultation with Dr Al Muderis. The consultation report shows only Dr Al Muderis and Ms Roberts were present. Any explanation of risks and complications was inadequate. The reference to infection downplayed its potential, particularly through the statement that if he developed an infection, antibiotics would be available. He did not address Mr Wynne’s legitimate concerns about the scar tissue on his leg, but rather downplayed it. The inadequacy as to the advice and the timing of it, as explained elsewhere, impacts the consent given by the patient.

897 I am also satisfied that Dr Al Muderis failed in his provision of aftercare to Mr Wynne. The set-up for his aftercare while he was still in Australia, being partly based in a hotel, leads to obvious problems. There were no arrangements in place for his aftercare after he returned to the United States. As the respondents submitted, whether Mr Wynne would have been better off had Dr Al Muderis put him on antibiotics is now not possible to test, but in any case, the post-operative treatment he received left him feeling unheard and poorly cared for. Again, this is in a context where Mr Wynne had raised concerns as to his scar tissue which were not acknowledged until after the surgery. I am satisfied in the circumstances that Dr Al Muderis failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Ms Rachael Ulrich

898 Ms Ulrich is also an American patient. She lives in Texas. She underwent osseointegration surgery with Dr Al Muderis in Sydney on 15 March 2017.

899 Ms Ulrich was an honest, open, credible and generally reliable witness. I accept her evidence. As explained below, aspects are supported by other evidence.

900 In closing written submissions, the applicant accepted that the Court should have no concerns about Ms Ulrich’s credit. He described her as forthright, direct and responsive. However, he submitted that her recollection of events in Australia was far from perfect and was unreliable, and the contemporaneous documentary evidence and evidence of other witnesses should be preferred.

901 Despite the above submission, in oral closing submissions he contended that Ms Ulrich had concocted evidence. An allegation of concoction is an allegation that a witness gave false evidence deliberately. In Ms Ulrich’s case, it was said to assist Mr Hernandez, an allegation also made by Dr Al Muderis himself during cross-examination. The problem for the applicant, as he recognised, is that Ms Ulrich was a credible witness, even if (on his case) a poor historian at times. Although she was mistaken about the dates and duration of some events, her evidence has support in the documentary evidence. I do not accept the submissions relating to concoction. I have addressed this issue elsewhere.

902 Dr Stephen Flecknoe-Brown and Dr Ruff were called by the respondents and gave expert evidence on Ms Ulrich’s case. I have addressed elsewhere my assessment of Dr Ruff as a witness. I accept his evidence in relation to Ms Ulrich. Dr Flecknoe-Brown is a consultant physician and clinical pathologist. He has served on health department advisory committees in both NSW and Queensland in relation to the development of guidelines for the management of anticoagulant medications and for prevention of venous thromboembolic disease in hospitalised patients. He is obviously qualified to express the opinions he did (which are referred to below). I accept his evidence as it relates to Ms Ulrich.

Background to surgery with Dr Al Muderis

903 Ms Ulrich was born with a vascular malfunction called venous arterial vascular malformation in her right leg and pelvis. She explained this means she is more prone to experiencing blood clots. Ms Ulrich’s foot had become extremely malformed because of her condition. In 2012 she had reconstructive foot surgery, from which she suffered infections.

904 Those infections, together with her vascular issues, caused a series of complications culminating in surgeries to amputate parts of her right foot in 2013 and 2014, and ultimately her entire right foot and ankle in 2015. Ms Ulrich said she also experienced a blood clot in 2009 and again in 2014. She also gave evidence of the care she received from her vascular surgeon, Dr Dennis Gable, in the context of her 2015 surgery, including that he was so concerned about her clotting risk that he instituted an anti-clotting protocol (which she described). As explained below, her evidence of what occurred in her previous surgeries (and her understanding of why) is relevant to her actions in relation to informing Dr Al Muderis of medical condition.

905 Ms Ulrich’s condition meant that it was difficult to use a socket prosthesis. She walked on one leg with crutches. While searching for a solution, she came across Dr Al Muderis’ website. She contacted his practice on 22 January 2016, completing an osseointegration health questionnaire via telephone with Ms Stewart. This form listed the cause of Ms Ulrich’s amputation as “[s]urgical amputation due to vascular malformations – Congenital”. In evidence is a generic “proposal for treatment and care” for Ms Ulrich dated 23 January 2016, and a fee estimate generated for her on 22 February 2016. It quotes US$78,000/AU$109,000 for her procedure.

906 Ms Ulrich’s evidence was Mr Hernandez, who contacted her as a result of her inquiry, informed her that Dr Al Muderis would be in Orlando, Florida in March 2016 at an orthopaedic conference. She then made plans to attend the conference with her then-boyfriend. In Orlando, she arranged to meet with Mr Hernandez and Dr Al Muderis in a hotel lobby. She said that Dr Al Muderis was sitting at a table with a woman named Shona (whom one can infer is Ms Stewart) and a woman who had osseointegration. There were other amputees nearby. She had not attended the conference, or the presentation Dr Al Muderis had given.

907 Ms Ulrich gave evidence that she and her boyfriend sat down at the table with Dr Al Muderis, and she explained her medical history to him. She said she told him of her vascular malformation issues, the dozens of surgeries she had, her history of amputations, blood clots and pain, and the difficulties she was having walking. She reiterated in cross-examination that she told him at this time she “had one clot, or a couple of clots”. She accepted she spoke briefly with Dr Al Muderis of her medical history.

908 She gave evidence that Dr Al Muderis did not ask her any questions about her medical history, did not write down anything that she said, and had a quick look at her leg (she was wearing shorts) without closely inspecting or touching it. Dr Al Muderis then said that she looked like a good candidate, and that he had plenty of patients who had vascular anomalies who had successfully had the surgery. Ms Ulrich’s evidence was Dr Al Muderis said surgery would entail an ongoing medical relationship with him, “a connection for life”, and that she would need him if anything were to go wrong, because the parts he used were patented and nobody else could “do what he does”.

909 Ms Ulrich’s evidence was that she then told Dr Al Muderis she wanted to proceed with the surgery, and that he and Shona provided her a quote for US$78,000 on the spot. She explained this was a shock to her and her boyfriend; she did not have that kind of money and had been unemployed for some time due to her medical issues. She gave evidence that Dr Al Muderis said that most people fundraise, and some put their house up and take a mortgage. According to Ms Ulrich, the entire conversation took 10 to 15 minutes. Dr Al Muderis did not provide her with any information about the risks of the surgery during this conversation.

910 Dr Al Muderis’ evidence was that he may have met Ms Ulrich in Florida but did not recall doing so. Nor, when put to him, did he recall any of the specific matters Ms Ulrich recounted in her evidence. Although he did not recall saying to her “if you have surgery with me, we will have a connection for life”, he agreed that it is the kind of thing he would say.

911 Ms Ulrich’s evidence was that she subsequently spent nearly a year fundraising and working for the operation and travel expenses, which she estimated would cost US$100,000. She created a GoFundMe on 12 March 2016. By February 2017, she had raised enough money.

912 Ms Ulrich gave evidence that she informed Mr Hernandez in February 2017 that she had raised the money and wanted to proceed with osseointegration. On 3 February 2017, a further estimate of fees was generated, honouring the US$78,000 quote she received in Florida in 2016. The AUD total was “discounted” by several thousand dollars to reflect the relatively favourable exchange rate as at 3 February 2017.

913 Hospital admissions paperwork addressed to Ms Ulrich and dated 28 February 2017 confirmed her surgery was booked for 15 March 2017. She had paid nearly all of her fees by 14 March 2017. She completed a Macquarie University Hospital pre-admission form on 3 March 2017.

914 Ms Ulrich arrived in Australia around 10 March 2017. She attended several pre-operative appointments, including a consultation with Dr Al Muderis on 14 March 2017. There is a dispute as to what occurred during this consultation, which I address below. She underwent surgery the following day.

915 Ms Ulrich developed blood clots while in hospital recovering from osseointegration surgery. A CT pulmonary angiogram dated 19 March 2017 demonstrated large bilateral pulmonary embolisms. A focus of this case study is whether Ms Ulrich disclosed her clotting history to Dr Al Muderis or his team, and Dr Al Muderis’ responsibilities as Ms Ulrich’s surgeon.

916 Venous thromboembolism (VTE) involves the formation of a blood clot within the deep veins, most commonly of the legs or pelvis (namely, deep venous thrombosis or DVT). These blood clots may become dislodged and then obstruct the pulmonary artery or one of its branches (being a pulmonary embolism or PE). Dr Ruff’s evidence was the pulmonary embolisms Ms Ulrich suffered, left untreated, may have resulted in long term respiratory compromise, pulmonary hypertension, or death. Dr Al Muderis accepted VTE can result in death.

Proof of Ms Ulrich’s history

917 The applicant submitted that there are no documents confirming Ms Ulrich’s evidence that she had previously experienced blood clots. In closing, he suggested that the Court act on the basis that there were no previous clots, or that Ms Ulrich misunderstood what she had been told. There is no basis in the evidence for why that would be so. Ms Ulrich gave direct evidence of specific actions she and her medical practitioners took on these previous occasions and, significantly, the precautionary steps her vascular surgeon took at the time of her amputation, including the rationale he gave her for those steps.

918 In any event, the submission misses the point. The issue is not whether the previous clots in fact occurred but rather, given Ms Ulrich believed they had occurred in the circumstances she described, whether Ms Ulrich disclosed a clotting history to Dr Al Muderis (or his team), and whether he acted on that information.

919 In the pre-operative stages, patients are asked various questions about their medical conditions, and on the applicant’s case, the medical team rely on their answers. A patient is asked about a previous history of DVT because it is expected that the medical team would be told if there was one and would act accordingly. Dr Ruff explained that a surgeon who is presented with a patient with a history of DVT must ensure the patient is anticoagulated at the time of surgery and for some period thereafter.

920 The applicant also submitted that the evidence of Dr Flecknoe-Brown proceeds on the assumption that Ms Ulrich had previously suffered DVT, and without proof of that, there is no foundation for his opinions. Given the nature of Dr Flecknoe-Brown’s opinions I refer to below, I disagree. As detailed below, Ms Ulrich informed Dr Al Muderis and others in his medical team of her previous blood clotting events, including Dr Gregory Bennett, a physician. Similarly, Dr Ruff’s expert evidence expressly refers to the evidence that Ms Ulrich had disclosed her previous blood clot to Dr Bennett, evidence which I accept.

Disclosure in Orlando

921 Ms Ulrich said that she told Dr Al Muderis in Orlando of her clotting history. The respondents submitted he was on actual notice of Ms Ulrich’s clotting history and was negligent in failing to take this into account both pre- and post-operatively.

922 I accept Ms Ulrich’s evidence that when she met Dr Al Muderis in Orlando, she gave him a brief medical history which included her history of blood clots. I do not accept the applicant’s submission that that is unlikely because the meeting was brief. I also accept that, having heard her history and having had a brief look at her leg, Dr Al Muderis told her she was a good candidate for the surgery (and that the conversation was generally in the terms she described).

923 The applicant submitted that even if Ms Ulrich had told Dr Al Muderis about blood clots in the meeting in Orlando, this was a “casual conversation” and not something Dr Al Muderis would be expected to remember a year later. They highlighted there were no notes of the meeting. He further submitted that, in any event, Ms Ulrich was not Dr Al Muderis’ patient.

924 The applicant’s submission illustrates a broader problem. The evidence which I accept reflects that Dr Al Muderis discussed medical matters with Ms Ulrich as a prospective patient and expressed opinions and gave medical advice without notes being taken. As previously discussed, that the applicant calls these meetings informal, or a mere chat, does not alter their true nature. Ms Ulrich acted on what Dr Al Muderis told her in Orlando. I note that Ms Ulrich’s disclosure of her blood clot history to Dr Al Muderis in Orlando is consistent with her doing the same with other medical practitioners after arriving in Australia: see below.

925 The applicant’s submission also minimises Dr Al Muderis’ responsibilities as Ms Ulrich’s surgeon. Ms Ulrich’s evidence is that, while in Australia, he did not speak to her about her history of blood clots before surgery. There is no evidence that Dr Al Muderis considered her history of blood clots. Being told of this in Orlando put him on notice and required him to take it into account in caring for her.

926 I note also Dr Flecknoe-Brown opined that although Ms Ulrich had raised the issue in Orlando, “the subject should have been raised [by Dr Al Muderis] closer to the time of surgery, in view of the rather informal way in which the initial interview was conducted in Florida in 2016”.

Disclosure in Sydney

927 Ms Ulrich gave evidence that in Australia she shared her history of blood clots with healthcare professionals who Dr Al Muderis organised for her to see. Her evidence is supported by documentary evidence from two pre-operative consultations.

928 On 13 March 2017, Ms Ulrich met with a physiotherapist. Although she was scheduled to meet Ms Sarah Benson, she may have consulted someone else. In any event, the handwritten notes of that consultation record, inter alia, “blood clot issues” (emphasis in original), and “vascular [unintelligible]” (emphasis in original). Dr Al Muderis did not recall being told that Ms Ulrich’s history of blood clot issues had been raised with a physiotherapist but accepted that “if a patient had disclosed to [Ms Ulrich’s physiotherapist] blood clot issues, that’s a matter [he] would expect be passed on to [him] as her surgeon”.

929 On 15 March 2017, the day of the surgery, Ms Ulrich had a consultation with Dr Bennett. She gave evidence that she was concerned because Dr Bennett appeared to have no familiarity with her medical history. She explained she took him through her medical history in detail, including that she had been born with vascular malformation which previously required surgery. She told him of her history of blood clots and the anti-clotting protocol that her Dr Gable placed her on when she had her leg amputated. She said she asked him whether she would be put on a blood thinner when she awoke from surgery, noting that is what occurred following her amputation surgery; he told her it would not be necessary. When she asked if he was sure given her history of blood clots and the protocol in place with her amputation, he replied that they did not want to do that because she could bleed too much during surgery.

930 A form that Ms Ulrich had completed for Dr Bennett, titled “Pre-Operative Assessment –Medical Questionnaire”, recorded that she had a superficial blood clot removed in 2008. She had also ticked “Yes” in answer to the question, “Have you or any of your blood relatives suffered a thrombosis, DVT, lung clots or clots elsewhere?”, leaving a comment, “superficial in right calf”.

931 A pre-operative consultation form Dr Bennett completed also recorded “superficial blood on the blood clot – right leg”. Dr Al Muderis accepted that Dr Bennett generally reports his pre-operative assessment to him but denied Dr Bennett told him that Ms Ulrich had disclosed any prior blood clot, DVT, or thrombosis. He accepted that if that had been disclosed to Dr Bennett, it would have been an important matter to pass on to him.

932 The applicant did not make any substantial written submissions directed to the pre-operative consultations with the physiotherapist or Dr Bennett and the notes regarding clots. In oral submissions, he downplayed the evidence. He submitted that the notes of Ms Ulrich’s consultation with Dr Bennett, in merely referring to a “superficial” blood clot, did not amount to a DVT disclosure, and Dr Bennett accordingly decided against following a clotting protocol.

933 That submission fails to grapple with Ms Ulrich’s evidence that she asked Dr Bennett about anti-coagulants and thereby put him on notice that they were considered necessary in her prior surgery. Dr Flecknoe-Brown explained that “a course of injections around the time of an operation … is the way of preventing … postoperative deep vein thrombosis”. I note that Dr Flecknoe-Brown inferred that, because of Ms Ulrich’s evidence that she had an ultrasound and injections following her 2009 and 2014 blood clots, she experienced DVT on those occasions.

934 Ms Ulrich was not required to prove to her treating doctors in Australia that she had suffered from blood clots before being listened to. That said, she did list Dr Gable as a vascular doctor on her health questionnaire and gave permission for Dr Al Muderis’ practice to contact him. There is no evidence that Dr Al Muderis or any person working with him ever sought to contact Dr Gable in connection with Ms Ulrich’s care.

935 The evidence establishes the applicant intended to file an affidavit of Dr Bennett and call him as a witness but chose not to. The respondents submitted that the Court ought to infer that Dr Bennett’s evidence would not have assisted Dr Al Muderis’ case. The respondents also point out the applicant opened his case asserting there was no medical record that they had seen suggesting Ms Ulrich disclosed blood clots to Dr Bennett. That plainly cannot be sustained on the evidence now before the Court. I accept Ms Ulrich’s evidence of her interactions with Dr Bennett. They are supported by documentary evidence. That conclusion can be more comfortably reached in the absence of Dr Bennett giving evidence.

Dr Al Muderis’ responsibilities

936 The respondents submitted Dr Al Muderis would have been negligent even if he was not in fact aware of Ms Ulrich’s clotting history, because he had a responsibility as her treating surgeon to ensure he had obtained a comprehensive picture of her clinical background that covered significant risks, including of clotting.

937 The applicant submitted that in the osseointegration health questionnaire Ms Ulrich completed with Ms Stewart on 22 January 2016 (see above), Ms Ulrich did not disclose any history of blood clots and that, in answer to a question about peripheral vascular disease, the response recorded is “Right side – Knee downward – some to hip (No anticoagulation medications required)”. I note that Dr Al Muderis accepted in cross-examination that he did not expect a patient to identify every medication they had ever taken where the form asks patients to list their medications, only the current medications they are on.

938 In the pre-admission form for Macquarie University Hospital which Ms Ulrich completed on 3 March 2017, she recorded, “No” to “Blood disorders / bleeding problems / bruise easily / clotting disorders”, and “No” to whether she had taken blood thinning medication in the past 12 months. Asked in cross-examination why she said “No” to the former question, she explained she does not have a clotting or blood disorder.

939 Dr Flecknoe-Brown observed the 22 January 2016 “questionnaire does not seek any information about previous episodes of DVT in the patient or family history of venous thromboembolic disease (VTE)”. As the respondents correctly highlighted, various patients in these proceedings completed patient intake forms, both before and after Ms Ulrich’s visit, that specifically asked about their history of DVT, but that question was not asked of her. Dr Flecknoe-Brown similarly opined that the 3 March 2017 form had not asked “the key question”, namely: “have you had thrombosis in association with surgery in the past or is there a family history of thrombosis”.

940 His evidence was, prior to the type of surgery Ms Ulrich underwent, Dr Al Muderis should have specifically asked whether she had a previous history of VTE or a family history of VTE. He opined that a form asking whether a patient has a history of blood clots is not adequate for the purpose of being satisfied that a patient does not have a previous history of venous thrombosis: “I don’t think a tick box like that is quite enough”.

941 He explained that adducing a history of thrombosis:

is an active process … it’s not just for …the patient to volunteer; it is also … for the doctor who is responsible for the question to ask the right question and go back and make sure that the patient understood the question and gave an answer upon which that doctor can rely. … the primary responsibility for obtaining a history of thrombosis preoperatively in an orthopaedic surgical patient is the orthopaedic surgeon’s responsibility.

942 He noted that Dr Al Muderis has formal training on hip and knee arthroplasty including primary and complex revision hip and knee replacement, and explained:

DVT and pulmonary embolism are high risk complications of orthopaedic surgery on the lower limbs, particularly hip and knee replacement. Thus, it would be expected that Prof Al Muderis would be aware of this issue and would assess his patients’ VTE risk pre-operatively and take appropriate precautions. Specifically, the patient should be asked about whether they have a past or family history of venous thrombosis.

943 Dr Flecknoe-Brown also gave evidence in cross-examination that neither hospitals nor anaesthetists can be relied upon to double check the patient’s DVT history. He explained in his report that “[o]rthopaedic surgeons should all be aware of the risk of VTE and ensure their patients are properly assessed for and protected from this risk” (emphasis added).

944 Dr Flecknoe-Brown was asked about Macquarie University Hospital’s use of the VTE risk assessment, which the hospital used to assess Ms Ulrich before and after her surgery. He was asked, if Ms Ulrich had disclosed any blood clotting or DVT history as part of that assessment, whether he would expect it to be listed in her clinical notes as an issue identified. He said no, he would not assume that it would be highlighted in that entry.

945 Dr Ajay Kumar, Ms Ulrich’s anaesthetist, deposed (in reply) that he held a pre-anaesthetic consultation with her the day of surgery, where he undertook a physical examination and took a pre-operative history. Thereafter, his evidence merely described his general practice. On that basis, he said he would have recorded Ms Ulrich’s history of clotting if she had disclosed it during their consultation.

946 The applicant’s submission that Dr Kumar asked Ms Ulrich about her blood clot history given his general practice places his evidence too highly. As the respondents correctly submitted, there is no evidence that he did this for Ms Ulrich. The pre-admission questionnaire he relies on does not ask the key question Dr Flecknoe-Brown described. I note Ms Ulrich also raised her history of blood clots with Dr Bennett that day. Given Ms Ulrich disclosed that history to him (and a physiotherapist on 13 March 2017), and given her concerns, it is unlikely that she would not have done the same with Dr Kumar if he had asked her the right questions.

947 I note also Dr Flecknoe-Brown’s evidence was that the medical records demonstrate that, by the time of the consultation, Dr Kumar had already planned an epidural for Ms Ulrich. He explained that because administering an epidural and Clexane (an anticoagulant) simultaneously can produce “devasting effects, including permanent paralysis below the waist”, the decision that Ms Ulrich would not be given post-operative Clexane would have already been made if an epidural was planned. The corollary for Dr Flecknoe-Brown was that he would not assume that Dr Kumar would ask questions that had already been expected to have been asked, that is, questions pertaining to previous blood clots. It is timely to recall Ms Ulrich’s evidence that Dr Bennett did not think it was necessary, and did not want to put her on a blood thinner post-surgery, and that they had discussed Ms Ulrich’s history of blood clots: see [929]. Dr Flecknoe-Brown separately explained “it’s not very common” for anaesthetists to ask about any previous DVT during a pre-operative assessment, and that it was not part of the routine pre-anaesthetic checklist.

948 It was Dr Al Muderis’ responsibility to ensure Ms Ulrich was anticoagulated (or otherwise provide appropriate care given her history) given what she disclosed to him and his team. He failed to do so. Even if Dr Al Muderis was not told of Ms Ulrich’s history, he bore the ultimate responsibility over whether she needed to be anticoagulated, as both Dr Flecknoe-Brown and Dr Ruff described. Against that background it cannot be accepted that Dr Al Muderis was not responsible for ensuring so much, because her care was shared amongst a multidisciplinary team. That he failed to obtain Ms Ulrich’s history of blood clots and act accordingly is sufficient to conclude that he was negligent in caring for Ms Ulrich. It needed to have been taken into account by Dr Al Muderis pre- and post-operatively.

949 Ms Ulrich experienced blood clots after her surgery, exposing her to the attendant risks. After the treatment of her pulmonary emboli began, her issues resolved. However, the condition untreated can be life threatening. Dr Ruff opined Ms Ulrich may have died in the immediate post-operative period.

950 To take it a step further, Dr Flecknoe-Brown and Dr Ruff were critical of Dr Al Muderis’ failure to put Ms Ulrich on a post-operative anticoagulation protocol, which they suggest was called for given she had disclosed a history of blood clots. Dr Ruff considered that anticoagulation at the time of, and following, surgery was a necessary step for Ms Ulrich. I accept that evidence.

951 I note that, although the applicant submitted that the hospital notes reflect that some steps were in place to manage Ms Ulrich’s VTE risk post-operatively, he relied on Dr Flecknoe-Brown’s evidence that those steps were appropriate. Dr Flecknoe-Brown’s evidence, however, was that the steps in place amounted to “good management, but [was] not enough” because Ms Ulrich should have had Clexane. He regarded post-operative Clexane as standard for a high-risk patient having a high-risk surgery.

Further issues

952 Below I address six further issues relating to Ms Ulrich.

953 First, Dr Al Muderis’ office generated a fee estimate for Ms Ulrich on 22 February 2016. Regardless of whether Ms Ulrich received this, or her recalling it, the fact that it was generated is significant. Dr Al Muderis gave evidence that he must have had a conversation with someone in his rooms to give them the information necessary to provide that estimate. His evidence was that a fee estimate is based on his assessment. At that time, the only information that Dr Al Muderis had of Ms Ulrich was her responses to the osseointegration health questionnaire she completed via telephone, and Ms Stewart’s notes of that call. Dr Al Muderis took issue with the suggestion his assessment was based only on health questionnaire information. However, it is plain from the documents that was the approach. Dr Al Muderis gave evidence that an assessment for a fee estimate needed to be made on clinical evidence, and not just a questionnaire. As it became apparent during cross-examination that there was no such evidence before the Court, Dr Al Muderis suggested he could have had a telephone conversation or Zoom consultation with Ms Ulrich before the estimate was generated. There is no record or other evidence of such a consultation as would be expected in a medical practice. Nor was it put to Ms Ulrich that she had spoken to him over the phone before meeting him in Orlando. His evidence was speculative and given to explain a fee estimate which had been generated in circumstances which the evidence establishes were neither appropriate nor acceptable. I note that Ms Schaeffer was similarly provided a fee estimate after submitting an online inquiry, but before any assessment by Dr Al Muderis was conducted: see case study below.

954 Second, Ms Ulrich said that she asked about the cost of the surgery in Orlando and was shocked by the amount. Although the fee estimate had been generated by that time, there is no evidence it was sent to her or that she received it. In any event, I accept there was a conversation about cost and financing in Orlando. It is plain the cost of the surgery was a significant issue for her, and it is probable she raised it in those circumstances. Her evidence of the discussion about how people raise money is consistent with that of other witnesses from the United States and Australia (see above in Fundraising in Part 6 Section 1). Shortly after the hotel meeting, Ms Ulrich set up a GoFundMe page to fund the surgery in Australia.

955 Third, Ms Ulrich’s surgery was booked and substantially paid for before she arrived in Australia; that is, before any discussion of the risks and complications of surgery. Prior to her consultation with Dr Al Muderis in Australia the day before her surgery, her only meeting with him was in the hotel in Orlando.

956 Fourth, contrary to the consultation report and the applicant’s case, Ms Ulrich denies attending a consultation where a large group of medical practitioners were present on 14 March 2017 (or at any time). I have considered the difference in Ms Ulrich’s description of her consultation with Dr Al Muderis in Australia from that of Dr Al Muderis, who relies on the 14 March 2017 consultation report.

957 The applicant submitted that the likelihood is that the consultation report is correct given that she had her consultation the same day as Mr Warland (discussed below in Section 7), whose consultation report contains a similar list of participants and who agreed that his consultation was with a group of people. However, an email circulated on 7 March 2017 listing new patients for Dr Al Muderis’ 14 March clinic lists Mr Warland as a patient but not Ms Ulrich. Ms Ulrich’s 14 March consultation report is also afflicted by pro forma or cut and paste statements. I note also that, typically, the American patients who gave evidence did not have a group consultation of the nature described in Ms Ulrich’s report. Despite the consultation report and, given the different context of the consultations for the American patients compared to the Australian patients, I consider it unlikely a large consultation occurred. Ms Ulrich gave evidence she had separate appointments with other members of Dr Al Muderis’ team in the days leading up to the consultation (rather than meeting them together). That is also consistent with documents in evidence.

958 Fifth, I have considered Ms Ulrich’s evidence of her final consultation in Australia with Dr Al Muderis, in which she recounted the anger her father expressed to Dr Al Muderis and Dr Al Muderis’ attitude in that context. Ms Ulrich’s father, on her evidence, was displeased with Dr Al Muderis’ failure to acknowledge what occurred with the blood clots or apologise. He had travelled to Australia earlier than he had planned to because of her medical condition. Ms Ulrich’s evidence was that Dr Al Muderis was blasé about what had occurred.

959 The discussion as described by Ms Ulrich is entirely plausible. The applicant’s submission that it is unlikely to have occurred given that Ms Ulrich had already lodged a complaint about the hospital and its staff, but not Dr Al Muderis, does not undermine that. That complaint was about the failure to pick up the DVT. It will be recalled that Ms Ulrich described that, in Orlando, she had a conversation with Dr Al Muderis in which he explained she would need him in the future if any complications arose. Her evidence was that this conversation “played on [her] mind” such that she was reluctant to complain when things went wrong because she believed he was the only person who could help her.

960 Sixth, the applicant submitted that Ms Ulrich was happy with Dr Al Muderis until his dispute with Mr Hernandez and, in that context, she concocted evidence in these proceedings to assist Mr Hernandez. Ms Ulrich accepted in cross-examination she saw Dr Al Muderis in September 2017 at a conference. She explained Mr Hernandez had asked her to come to the conference to model the implants and that she was at a booth for that purpose. In cross-examination of Ms Ulrich, the applicant displayed a series of upbeat WhatsApp messages between Ms Ulrich and Dr Al Muderis throughout 2017 and 2018. The messages ceased in late 2018, by which time Dr Al Muderis and Mr Hernandez’s dispute was underway. It was put to her that, in that dispute, she chose Mr Hernandez’s side.

961 Ms Ulrich acknowledged her messages with Dr Al Muderis do not reflect a problem with him, but she explained she had her “own reasons for not trusting” Dr Al Muderis. Sometime after returning to the United States, she met him at a convention and pointed out to him that a screw from her implant was digging into her leg, causing a tunnel wound. She said he told her she would need to pay $5,000 for a new piece of hardware and that he did not seem to care or want to help her. At that point, she explained, she “was done with him in my head”, but remained:

friendly with him because he had … drilled it into my head that he was the only surgeon in the world who could fix something with his patented implant in my body if something went wrong with it.

962 The applicant put to her that there was no tunnel wound and no such interaction with Dr Al Muderis, which she denied. She explained she had surgery to fix the tunnel wound. That is plausible, and I accept her evidence.

963 Ms Ulrich explained her lack of trust in Dr Al Muderis started in Australia with:

No accountability when … I ended up in the CCU [coronary care unit]. No admittance of that his team had been negligent, and not listened to me, and had dismissed my complaints for about 24 hours with all of my symptoms [when] I kept saying, “I’m pretty sure I have a blood clot.”

964 Ms Ulrich accepted she reached out to Dr Al Muderis when she needed a certificate in 2019 from him saying it was safe for her to have an MRI with the hardware in her. It is not surprising that he was the person to provide such a certificate. Ms Ulrich described in this context being:

scared to sever this relationship, because if something went wrong with this, who was going to help me, since USA doctors and surgeons were scared to even touch my leg with this implant in it.

965 Dr Ruff’s evidence on their relationship is perceptive:

It was disturbing to see Ms Ulrich’s reaction to Dr Al Muderis telling her, in Orlando Florida that because of the patents on the components of his implants she would be his for the rest of her life. She admitted that this played on her mind and skewed her attitude towards questioning Dr Al Muderis both before and after her surgery. It seems to be unreasonable control to exert over a patient who is vulnerable enough to start with and in addition making the patient less likely to question it allows the surgeon to be more dismissive. This made the patient unreasonably dependent upon the surgeon and disturbs the balance of the doctor/patient relationship in favour of the doctor. The surgery has dramatically changed Ms Ulrich’s life in the short term, it may also have ended it in the immediate post operative period.

966 Ms Ulrich’s explanation for the sentiments she expressed to Dr Al Muderis are common amongst the patient witnesses. It is something, by his conduct, he fosters.

967 I am satisfied that Ms Ulrich was not adequately assessed, given her history of blot clots, and there was a failure in her aftercare. In the circumstances, Dr Al Muderis failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Mr Chris Bruha

968 Mr Bruha lives in the United States. On around 5 May 2016, he lost the use of his legs after a paragliding accident in Honolulu, Hawaii. On 12 July 2017, he underwent bilateral below the knee amputation and osseointegration surgery with Dr Al Muderis.

969 The applicant submitted that Mr Bruha is not a good historian, his evidence is unreliable, and that he is a person of no credit. It was submitted that he was “fundamentally dishonest”, and that the Court should not accept any of his evidence, except to the extent that it was against his interest or corroborated by contemporaneous documents. The basis for the submission is addressed below, and it is best understood in light of the issues that arise in this case study. Suffice to say at this stage, I disagree with that description of him, although I accept that care should be taken with his evidence. Aspects of his evidence are supported by other evidence.

Background

970 Mr Bruha gave evidence that he broke his back and crushed his ankles in the paragliding accident. He explained his back injury caused nerve damage which extended down his right leg, causing a lot of pain and weakness. He explained that for around a year after the accident, his doctors tried to operate on his ankles to save them. Mr Bruha agreed there is a lot of hardware in his body as a result of many surgeries, including hardware in the bottom half of both his legs, more so on the left than the right. He agreed that walking caused him extreme pain, explaining he was “pretty much” wheelchair-bound.

971 Mr Bruha’s evidence was that he saw a doctor in Idaho some time in February 2017 who diagnosed him with a bone infection in his left ankle. He was told there was a risk the infection would spread up the bone if left untreated.

972 He explained that he conducted research online “to try to find ways to get back on my feet”. He came across osseointegration and Dr Al Muderis when he saw a YouTube video of a below-knee amputee with osseointegration mountain biking. He contacted the amputee on Facebook, and she gave him Mr Hernandez’s number, who she said represented Dr Al Muderis in the United States. Mr Bruha telephoned Mr Hernandez, who informed him that Dr Al Muderis was going to be at a conference in Chicago.

Chicago

973 Mr Bruha attended the conference in Chicago with his mother on 5 March 2017. His evidence was that Dr Al Muderis was also meeting with about 30 to 50 amputees and others looking into undergoing osseointegration. After a lecture given by Dr Al Muderis, Mr Bruha and some of the other attendees waited to see Dr Al Muderis at the back of the conference room.

974 Mr Bruha said Dr Al Muderis conducted an individual assessment of him. This was a sit-down meeting. Dr Al Muderis examined his legs (although Mr Bruha did not say he touched them) and told him words to the effect of: “I have no concerns with your surgery and I think you are a good candidate for osseointegration”. Mr Bruha’s evidence was he had brought his x-rays with him, and Dr Al Muderis held them up to the lights so he could “take a look and see” what they showed. Mr Bruha agreed in cross-examination that Dr Al Muderis told him he would need to have tests in Sydney, and that he understood he would have to travel there “to be fully medically assessed before [it] could be confirm[ed] that [he] could have the surgery”.

975 Mr Bruha gave evidence Dr Al Muderis (without specifying the currency) quoted $75,000 per leg during the assessment. He told Dr Al Muderis that Mr Hernandez had led him to believe that the procedure would be at least half that cost. Dr Al Muderis said words to the effect of: “We have expenses we had not anticipated and are not able to cover at the lower price we were previously charging for the procedure, and so we had [to] put the price up”. Mr Bruha said that Dr Al Muderis looked over to Ms Roberts to ask how much they were charging. He felt they were making it up as they went. Dr Al Muderis said words to the effect of: “Fundraising is one of the ways patients have paid for their surgery”. Mr Bruha felt sick when he received the quote from Dr Al Muderis. He explained he wanted to get osseointegration as soon as possible but did not know how he would be able to afford it.

976 Mr Bruha’s evidence was that Dr Al Muderis did not seem concerned that he had previously been diagnosed with bone infection or that he was on very serious painkillers just to get around. Dr Al Muderis accepted that Mr Bruha may have told him of these concerns. Mr Bruha recalled that Dr Al Muderis said words to the effect of: “You will be able to walk pain free after surgery with me.”

977 Mr Bruha gave evidence that, because of the risk of his bone infection spreading up his ankle, he had limited time to make several important decisions. He explained he was “super vulnerable at the time”, and that he was “on massive doses of oxycontin while trying to make these decisions”.

978 Mr Bruha found ways to come up with extra money to fund the procedure. He said he fundraised about US$17,000, received US$25,000 from friends and took out a loan against his house to cover the balance. As explained further below, Dr Al Muderis’ office sent Mr Bruha an email attaching an invoice for the surgery (and related costs) totalling AU$176,400, requiring him to pay in full before arriving in Australia.

979 In cross-examination, it was put to Mr Bruha that he had said to Mr Steinfort that “he [Dr Al Muderis] did not” provide him with medical advice in the United States. Mr Bruha responded, “I don’t know why I would say that. I met with him for those reasons in Chicago at that point”. I note there is no suggestion that Mr Bruha did not tell Mr Steinfort what occurred when he met with Dr Al Muderis in Chicago. I note the applicant, in putting that to Mr Bruha, did not disclose that Mr Bruha subsequently said to Mr Steinfort “And if he did [provide medical advice], I don’t recall.” However, Mr Bruha characterises the statements made by Dr Al Muderis during the assessment as being of little weight, where the evidence otherwise reflects that, in substance, Dr Al Muderis provided him with medical advice in Chicago. Dr Al Muderis initially denied he had evaluated or assessed Mr Bruha at the conference or gave him advice about his suitability for osseointegration. His evidence was that they had a general discussion about the surgery and told him he would need to come to Sydney for a formal medical examination. However, he later gave evidence in cross-examination that he told Mr Bruha that he “may be suitable for osseointegration”. He later said from “the physical point of view … he was probably suitable”. This is in a context where he had considered the x-rays which Mr Bruha was asked to bring.

980 In evidence is a letter to Mr Bruha’s insurance company dated 18 May 2017. It is on Dr Al Muderis’ letterhead and bears his signature.

981 Given the terms of the letter, it was written by Dr Al Muderis on behalf of Mr Bruha for the purposes of seeking to persuade the insurance company to fund Mr Bruha’s osseointegration surgery (Dr Al Muderis agreed in cross-examination that purpose “makes sense”). The letter makes clear that the procedure is available in only a few European countries and Sydney, but not the United States. The letter recounts aspects of Mr Bruha’s conversation with Dr Al Muderis in Chicago. It refers to information which was “recorded” at the time Mr Bruha was “evaluated by Dr Al Muderis”. It also included the following:

… Dr. Al Muderis examined Chris as well as his x-rays and spent considerable time discussing the various surgical versus non-surgical options available to Chris.

Dr. Al Muderis offered Chris to come to Sydney, Australia to undergo bilateral below the knee amputations and then immediately proceed to a single stage Osseointegration procedure for both lower extremities. Dr. Al Muderis recommended that Chris have the procedure performed at the Osseointegration Center of Australia where we have performed over 300 osseointegrated procedures as of this date and more than any other center in the world. As of the date of this letter, we have performed 79 below the knee Osseointegration procedures of which 16 have been bilateral.

…

As of the date of this letter, 64 patients from the United States have chosen to undergo Osseointegration procedures at the Osseointeg[r]ation Centre of Australia. We pride ourselves in the close follow up we establish with each and every one of our patients. …

982 The letter concludes, “I am strongly requesting that you consider Chris’ appeal”, that is, that the insurance company consider Mr Bruha’s (and Dr Al Muderis’) appeal for assistance with this surgery.

983 That letter is consistent with the events that Mr Bruha described occurring at the consultation in Chicago, including that he brought his x-rays, and there was an examination and recommendation made. Its terms are unequivocal. It supports his evidence, and also that of Ms Ulrich and Mr Wynne as to the nature of the consultation in the United States. I note that the letter states that at that time 64 patients from the United States had undergone osseointegration surgery at the Osseointegration Centre in Australia.

984 Dr Al Muderis accepted he was responsible for the letter’s contents, although at the same time, distancing himself from it.

985 He disputed the accuracy of the letter’s contents. For example, he denied offering Mr Bruha to come to Sydney to undergo bilateral below-knee amputations and immediately proceed to a single-stage osseointegration procedure.

986 The applicant submitted that the letter was clearly written by Dr Rosenblatt based on information Mr Bruha provided to him in a telephone call. The applicant relies on an email chain dated 16 May 2017 involving Mr Bruha, Dr Rosenblatt, Mr Whelan and Mr Hernandez. Those emails do not support the submission.

987 The chain commences with Mr Hernandez asking Mr Whelan if someone can contact Mr Bruha, explaining that Mr Bruha had contacted Mr Hernandez seeking information before proceeding with booking his surgery. In the next email, Mr Whelan explains to Mr Hernandez “the information required is medical … Solon [Rosenblatt] will call Chris tomorrow”. The next email is from Dr Rosenblatt to Mr Bruha:

… I understand you met Munjed recently and you have some questions regarding the osseointegration procedure? I am one of the surgeons that works with Munjed and would be happy to answer any questions you might have. I understand you live in Montana? What is a good time for me to call you? …

988 Mr Bruha then proposes a call for that day.

989 It is plain from the correspondence that Dr Rosenblatt was not at the consultation in Chicago, and the purpose of the call was for Dr Rosenblatt to field Mr Bruha’s questions about osseointegration. There is no suggestion in the correspondence that Dr Rosenblatt needed or intended to ask medical questions of Mr Bruha to procure any of the detail underlying the letter. Conceivably, Mr Bruha may have raised the need for an appeal to his insurer and some discussion ensued, but there is no evidence to that effect, let alone any to support the applicant’s submission Dr Rosenblatt wrote the letter (or any part of it). Nor is there anything in the evidence to suggest that this letter was written based on anything Mr Bruha said to him.

990 The only other evidence relied on by the applicant in support of his submission is that although the letter is on Dr Al Muderis’ letterhead, it also has what is said to be Dr Rosenblatt’s logo on it.

991 Mr Bruha’s evidence on the topic does not assist as he is unclear as to who he talked to about the letter, and when or how any conversation occurred. As to the email exchange, he deposed that his telephone conversation with Dr Rosenblatt was about administrative matters for when he arrived in Australia and the procedure generally.

992 The applicant’s submission presupposes that Mr Bruha told Dr Rosenblatt what occurred at the consultation in Chicago and that Dr Rosenblatt blithely put it in the letter on that basis. That premise has no foundation. It also presupposes Dr Rosenblatt then sent the letter in Dr Al Muderis’ name, without checking with Dr Al Muderis whether its contents as to what occurred at the consultation and the advice given to Mr Bruha as recorded in it were correct. That is inherently implausible. There is no explanation as to why that would have occurred. The letter, as apparent from what is recited above, includes information which is said to have been recorded at the time of the Chicago consultation. Dr Rosenblatt was not at that consultation. It contains details, such as the fact and content of the recorded information referred to which would not be known by Mr Bruha. If the letter was written by Dr Rosenblatt on his own volition, there is no reason why he would not have signed it. It bears Dr Al Muderis’ signature. I do not accept the applicant’s submission. In any event, regardless of who wrote the letter, I do not accept that Mr Bruha provided the information for its contents.

993 The applicant submitted that the proposition that Mr Bruha was confirmed as suitable for osseointegration in Chicago is inconsistent with contemporaneous documents. I note Mr Bruha’s evidence was that Dr Al Muderis said he was a good candidate for osseointegration. He does not use the word confirmed. In any event, the primary contemporaneous document referred to is the email chain dated 16 May 2017 described above. The applicant submitted that well after the Chicago conference, Mr Bruha contacted Mr Hernandez to say (according to Mr Hernandez’s email) that he was “looking to book in July but needs some information before he can proceed”. That correspondence is not inconsistent with Mr Bruha’s evidence. The applicant conflates two different concepts; one being what Dr Al Muderis told Mr Bruha as to his suitability for surgery, the other being Mr Bruha’s decision to undergo the surgery.

994 As to the assessments which were to occur in Australia, the fee estimate, emailed to Mr Bruha on 21 May 2017 (the estimate itself is dated 18 May 2017), states, inter alia, that “[w]e require patients to arrive 5 days pre-surgery to complete all necessary pre-operative assessments”, and:

[t]his time frame will also allow you to settle in as well as undergo some routine investigations i.e., pathology collection, gait analysis prior to the surgery, and further investigations to examine energy expenditure etc.

995 It states that “[a]fter confirmation of a surgical date, patients will receive an invoice reflecting” the estimate provided. As discussed elsewhere, Dr Al Muderis’ office required Mr Bruha to make payment in full before arriving in Australia. The description of undergoing pre-operative assessments is consistent with the surgery date being confirmed.

996 The applicant placed emphasis on a passage in the covering email from Dr Al Muderis’ office:

We appreciate your assistance in answering all the questions for our medical screening. This along with x-rays and pictures assists us in our assessments and if you have not yet been able to send x-rays or pictures we would very much like them to be sent to us in the very near future. …

We have attached some information for you to read as well as a cost estimate so that you can be informed about your choices.

997 That a patient is providing information and completing forms before arriving in Australia is not inconsistent with Mr Bruha’s evidence as to the nature of the meeting in Chicago or what he said Dr Al Muderis told him. The invoice for AU$176,400 was sent to Mr Bruha on 7 June 2017, which noted surgery was for 12 July 2017. A separate document establishes that the surgery date was confirmed by 24 May 2017, with the document also recording that the pre-admission papers and pain forms had been received from Mr Bruha.

998 The applicant relied on the passage from the covering email recited at [996] to submit:

The communications summarised above are consistent with Dr Al Muderis and his team continuing to collect medical information about Mr Bruha as of May 2017, the assessment process being ongoing, and no final decision to proceed with surgery having been made as of that time. The Court would accept Dr Al Muderis’s evidence that he did not conduct a full examination of Mr Bruha and did not definitively advise that he was suitable for osseointegration, during the meeting in Chicago.

999 The limited information collected by this time is that referred to above. The respondents did not submit that Dr Al Muderis conducted a “full examination” of Mr Bruha in Chicago, only that he conducted an examination. Indeed, part of the complaint is the scant nature of the examination, and the limited information provided to patients. Further, advising a patient that they are suitable for osseointegration in the manner described by Mr Bruha does not necessarily equate with advising a final decision to proceed. The applicant appears to be setting up a strawman. That these assessments are occurring in Australia is not inconsistent with and does not undermine Mr Bruha’s evidence.

1000 The applicant criticised the respondents’ cross-examination of Dr Al Muderis on the basis that he had no communication with Mr Bruha between the meeting in Chicago and Mr Bruha’s arrival in Sydney. The applicant submitted that although Dr Al Muderis did not recall specifically doing so, he explained that it was highly unlikely that there were no communications, because in every case there are phone consultations with the team. It is plain from the terms of the cross-examination that it was directed to Dr Al Muderis’ contact with Mr Bruha, not others. Dr Al Muderis answered that although he did not know, it was “very unlikely” that he had no other communication with Mr Bruha during this intervening period. There is no evidence of any other communication between him and Mr Bruha. Nor is there any documentary evidence of a further consultation. It was not put to Mr Bruha that he spoke to Dr Al Muderis during this period. Mr Bruha did not give evidence of any communication. No evidence supports Dr Al Muderis speaking with Mr Bruha again until their consultation on 11 July 2017, the day before his surgery. There is nothing improper about the respondents’ questioning. I do not accept there was any other consultation or communication by Dr Al Muderis with Mr Bruha in the intervening period.

1001 What is really at issue is that Mr Bruha, (and the other American patients who had met him in the United States), based their decision to pay for surgery and subsequently travel to Australia on Dr Al Muderis’ advice. That is so even if they were also getting information about the process from others in Dr Al Muderis’ team. They were expecting surgery to occur. The terms in which the fee estimates are couched are consistent with the conduct which Mr Bruha described occurred in Chicago.

Misleading information

1002 Two aspects of information given to Mr Bruha in Chicago are said by the respondents to be misleading: being told he would be pain free and the infection rates.

1003 As to the first, it will be recalled that Mr Bruha gave evidence he was told that he would be able to walk pain free after the surgery. Dr Al Muderis could not recall saying this. The respondents submitted that the Court ought to be satisfied that the statement was said, consistent with Mr Smith’s evidence, and that it too constituted a serious failure to warn of the risks and complications of the proposed surgery. This statement is akin to that which Mr Smith said he was told by Dr Al Muderis: see case study below in Part 6, Section 7. As already explained, there is also promotional material from which a reasonable person would understand osseointegration surgery was a pain free experience (see Brochures – misleading statements in Part 6, Section 1). In that context, I consider it likely that the statement was made to Mr Bruha.

1004 As to the second, the infection rates, the respondents submitted Dr Al Muderis’ slide show and presentation in Chicago (which Mr Bruha and other prospective patients attended) presented a positive, and totally misleading, picture about low rates of infection related to osseointegration surgery. They submitted that Mr Bruha’s evidence about what was said as the slides were shown is entirely consistent with the ordinary reading of those slides. The slides of the presentation are in evidence.

1005 Dr Al Muderis’ evidence was that the slides related to a study. The purpose of the study, he said, was to introduce a classification system for infection and complication rates and was not to convey the results of complication rates. He rejected the suggestion that he was presenting a representative study, explaining the presentation “was presenting results of a particular paper on a particular cohort of patient[s] in a particular period of time … [t]hat does not reflect the overall complication rate”.

1006 The study was conducted between 2009 and 2013 on a cohort of 86 osseointegration patients. Mr Bruha deposed that during Dr Al Muderis’ presentation he said words to the effect of: “The rates of infection in my patients are really low and where infection does occur, it can be dealt with very easily”. He explained Dr Al Muderis made it sound like it was a rarity that his patients ever had their osseointegration surgeries reversed. Dr Al Muderis rejected Mr Bruha’s evidence.

1007 The slides showed that 30% of patients in the cohort experienced grade 1 infections (the least serious), 5% experienced grade 2 infections, and no patients experienced grade 3 or grade 4 infections (being “deep infection” and “implant failure”, respectively). Dr Al Muderis accepted in cross-examination that at the time of this presentation some of his own patients had experienced grade 3 and 4 infections (but said those matters were not captured by the particular paper he was presenting).

1008 There is no express disclosure in the slides that the cohort was not representative. To the contrary, aspects of the slides convey that the cohort was representative. One slide includes an excerpt of the paper that originally published the study: “We report on the safety of press-fit osseointegrated implants currently used in Australia and the Netherlands”. The presentation otherwise holds the paper out as “The Safety Paper”. Absent an express disclaimer, it was open to the audience to infer that the basis for a safety report is a representative sample of patients.

1009 In any event, there is no evidence that Dr Al Muderis identified any limits on those figures for the audience. Significantly, nor is there evidence that Dr Al Muderis spoke of the patients outside of the study’s cohort who had in fact experienced the serious symptoms reflected in grades 3 and 4 infections.

1010 The problem with the presentation is the audience included prospective patients in addition to clinicians. Although Dr Al Muderis may have been presenting non-representative figures, that does not answer the claim that the presentation was misleading. The figures show a very positive result, which could readily be understood by a lay person to have broader application, as in the case of Mr Bruha. In that context, Mr Bruha’s evidence of Dr Al Muderis’ statements about infection (see e.g. [1006] above) is plausible. Mr Bruha, who was particularly concerned about infection, given what he was advised was his condition, would have been alert to any information on the topic.

1011 As will be apparent from a consideration of the case studies, other patients gave evidence of being told by Dr Al Muderis in their consultations, in effect, that infections rates were low and not a matter of concern and, as discussed elsewhere, the consultation reports generally downplayed the risks of infection.

1012 I am satisfied the presentation was misleading to lay persons. The slide show conveyed that the risk of serious infection for osseointegration patients was remote or non-existent.

Risks and complications

1013 It is appropriate at this stage to refer to the broader evidence in relation to what Mr Bruha was told about the risks and complications of the surgery.

1014 Mr Bruha deposed Dr Al Muderis did not explain any of the risks of the surgery to him during the Chicago meeting (or on any other occasion), other than a risk of mild infection. As the applicant submitted, the slide show presentation at the conference did refer to complications other than infections, including fractures, over-granulation (i.e. hypergranulation), skin redundancy, implant failure and loosening, as well as red flags during rehabilitation. These complications (but not the rehabilitation red flags) appear to be results of “The Safety Paper”.

1015 Mr Bruha accepted that the presentation ran for about 45 minutes and that Dr Al Muderis explained the surgery, talked about the upsides and downsides of osseointegration and the risks of the surgery. Of the risks put to him in cross-examination that were discussed, he particularly remembered infection and stress fractures (from the implantation of the prosthesis). Mr Bruha said he was concentrating on his phone as he was recording parts of the presentation; he explained that the most important part to him was meeting Dr Al Muderis after the presentation, and that “the slide show was something I was just going to look at on my phone afterward”. Mr Bruha did capture parts of the presentation on is smartphone which are in evidence.

1016 Irrespective of what was said in a presentation at a conference, that Mr Bruha attended the presentation does not alleviate a doctor’s responsibility to explain the risks and complications to patients. As Dr Ruff explained:

The use of brochures or other documents explaining treatment options, benefits and risks that are prepared by the surgeon or a professional association is only an adjunct to the process of informed consent. They do not replace a discussion with the patient …

1017 I am satisfied that at the time Mr Bruha paid for his surgery, before arriving in Australia, Dr Al Muderis had not explained to him the risks and complications of the procedure (nor how they would pertain to him).

1018 Mr Bruha next saw Dr Al Muderis in Australia on 11 July 2017. In this regard the applicant relied on the consultation report dated 11 July 2017, being the consultation the day before Mr Bruha’s surgery. This report is discussed above: see Consultation reports in Part 6, Section 1.

1019 This report is far more detailed than that of other patient witnesses. It is unsigned and has no addressee. There is no evidence of Mr Bruha seeing this report. Mr Bruha agreed in cross-examination that he and Dr Al Muderis had talked about risks and complications generally. As to whether Dr Al Muderis said there was a high risk of infection, Mr Bruha said that he had no recollection of it being said but agreed it may have been.

1020 The applicant submitted that, when the substance of Dr Al Muderis’ consultation report was put to Mr Bruha in cross-examination, he agreed with effectively all of it, and the Court should therefore accept that the report is an accurate summary of the consultation. Although some of the report’s substance was put to Mr Bruha, other key details were not (e.g. that the infection risk is “100%”; that he may lose his leg above the knee as a result of the “dramatic” infection risk; that he might need intravenous antibiotics; that he may need to take antibiotics “for a prolonged period”; that he may need multiple debridements; that the implant may need to be removed; that self-care and hygiene is paramount; granulation risk, “especially activity related”; risk of periprosthetic fracture; clots in leg/lung; general anaesthesia risks (death etc)).

1021 The applicant’s submission that the discussion of risks was recorded in more detail than usual in this report because of Dr Basten’s warning that Mr Bruha was particularly anxious about infection and required special reassurance is rather curious (he did not do this for other patients who were anxious about infection (e.g. Mr Wynne) who Dr Basten advised needed extra reassurance). That was not Dr Al Muderis’ evidence. His evidence was that he “went into great detail informing Mr Bruha about the risk of infection in light of Dr Basten’s advice that he was anxious about infection” (emphasis added). The implication from that answer is that he told Mr Bruha more than he ordinarily would, not that he recorded more in his report. In any event, it will be recalled that on the applicant’s case, the report is not for the patients’ benefit: see Consultation reports in Part 6, Section 1.

1022 It follows that, on the applicant’s case, the discussion he had with Mr Bruha about the risks and complications of the procedure occurred on the day before the surgery was scheduled to occur. The implications of this have been explained elsewhere.

The surgery

1023 I address two issues.

1024 First, during Mr Bruha’s surgery, Dr Al Muderis amputated his left leg higher than his right leg because there was more proximal hardware in the left leg than the right. Although the consultation report explains the “amputation will be at a clear level away from the hardware to avoid any contamination”, there is nothing in the report that supports the proposition that his legs would be uneven. That is also consistent with Mr Bruha’s evidence. Mr Bruha deposed, and largely reiterated in cross-examination, that after the surgery Dr Al Muderis told him words to the effect of:

I had a hard decision to make to make it uneven. You will just have to live with it. I made the decision because you had metal in your left leg and I had to get above that on the leg.

1025 Dr Al Muderis’ evidence in re-examination was that he remembered discussing with Mr Bruha pre-operatively “that he had the hardware at different levels. And I explained to him on the screen how and where his leg would be amputated to have a clear margin” and “that was a difference in the … legs”.

1026 As the respondents pointed out, this discussion was not put to Mr Bruha, which would have been expected. Nor is the discussion relied on in the applicant’s submissions. I note also that the applicant’s evidence does not explain why the legs are uneven. That it was necessary to be clear of the hardware does not explain that.

1027 Second, shortly before the surgery, Mr Bruha drew on his own legs with a Sharpie, pointing to where the amputations were to occur. He gave evidence that this was because the paperwork in relation to the operation incorrectly described that the amputations were to occur above the knee. Photographs taken at the time show that there were markings above his knees, being the words “no femur”, with arrows pointing down to his feet, Mr Bruha described he did that to emphasise that the amputation was not to be done at his femur. The hospital record also mistakenly states the operation performed was at the femur level, while also later stating it was a below the knee amputation.

1028 There is also a photo with Mr Bruha’s initial markings mostly scrubbed off, with fresh markings extending to his lower legs, with lines across each of his shins. The lines appear even on each leg. Mr Bruha’s evidence was that Dr Al Muderis was upset at him for using a Sharpie, citing a risk of infection, and he then cleaned Mr Bruha’s legs and made the fresh markings. Although there might have been an issue as to which of the pre-operative rooms this occurred in, it can be accepted such an incident occurred.

1029 Mr Bruha’s concern about the paperwork correctly reflecting the procedure is not unreasonable given it involved amputating his legs.

Post surgery

1030 Mr Bruha gave evidence that he had a hole in his right shin following surgery. Photographs taken before and after the surgery demonstrate as much. He said he observed the hole as soon as his dressings were changed for the first time following his surgery. Mr Bruha deposed that the wound in his right leg looked like a gunshot wound, which was “about the size of a US quarter”.

1031 Mr Bruha’s description of it being a hole appears apt on the photographs. What is less clear is when the hole was evident, and the cause of it. Mr Bruha deposed that Dr Al Muderis did not give a straight answer as to what the hole was, although in cross-examination he accepted that Dr Al Muderis was not dismissive of his concerns in relation to the hole. He said no one would take responsibility for it. Mr Bruha opined in his affidavit that the cause of the hole was an incision, but that is speculation.

1032 Nonetheless, Dr Al Muderis does not address the hole in his affidavit. Mr Bruha deposed that Dr Al Muderis blamed him for the hole and told him: “The infection probably occurred because you were a mountain biker and had scratches on your leg from before the surgery.” Mr Bruha maintained in cross-examination that when Dr Al Muderis first saw the hole he blamed him, saying, “What did you do here”, and that “he thought it came from the mountain bike wreck”. In cross-examination, Dr Al Muderis denied that it was a surgical incision, explaining that it was a fracture blister that occurred after the surgery.

1033 Dr Al Muderis in cross-examination said that on 7 August 2017, the date of his last consultation with Mr Bruha, he wrote a prescription for antibiotics because Mr Bruha had a fracture blister, which increases the risk of infection. I note that there is no reference to that fact, or to what is said to be a fracture blister, in the consultation report for that day or any other day. Mr Bruha said he had not heard of the hole being a fracture blister until his cross-examination.

1034 Dr Al Muderis’ evidence in cross-examination as to the reason he prescribed antibiotics is inconsistent with his affidavit evidence. He deposed:

I did not observe any signs of infection when I saw him on 7 August 2017, just as there had been no evidence of infection throughout the post-operative period. I wrote him a script for antibiotics to take home, but I routinely do that with international patients in case they develop an infection whilst in transit.

1035 None of the other American patients who were called gave evidence supporting that practice (indeed, Mr Wynne explained that Dr Al Muderis refused to prescribe him antibiotics before returning home: see [872]-[873]). Given the applicant addressed in his affidavit the purpose of prescribing antibiotics on 7 August 2017, that he failed to initially cite the fracture blister as a basis for the prescription is noteworthy.

1036 I note although Dr Al Muderis said that there was no evidence of Mr Bruha having an infection after surgery while he was in Australia, there is no evidence that Mr Bruha had any infection tests conducted post-operatively. This is to be contrasted with the evidence of pre-operative tests. Dr Flecknoe-Brown expressed the view that if something is done, a doctor should record it (“not documented, not done”). Although Dr Stoita opined that, based on Mr Bruha’s symptoms, clinical examination and investigations, there is no evidence that he had an active bone infection at the time of the consultation on 11 July 2017, Dr Stoita does not (and was not asked to) express an opinion about an infection suffered by Mr Bruha at any other time.

1037 There is no sufficient evidential basis to make a finding as to the cause of the hole in Mr Bruha’s leg. The photographs by themselves are insufficient, as is Mr Bruha’s speculation. I recognise that there appears to have been no explanation proffered to Mr Bruha, which is curious. It is unclear why, if it was a fracture blister, he was not told that. There is no documentary record in support of that. Of course, absence of evidence does not amount to evidence of the opposite. In any event, for present purposes, the cause of the hole is not as significant as what was said to stem from it.

1038 Mr Bruha’s evidence was that he had an infection after surgery and was given three rounds of antibiotics in Sydney, which held it at bay. Dr Al Muderis’ evidence is that Mr Bruha’s concern about having a potential infection during this period “was not rational” noting he was “seen regularly by physicians and nursing staff at Macquarie University Hospital who did not identify signs of infection”. Mr Bruha had post-operative consultations on 18 July 2017, 31 July 2017 and 7 August 2017. The 31 July 2017 consultation report recorded that Dr Al Muderis prescribed him Keflex (an antibiotic) on that day. Mr Bruha said he knew he had an infection and that there were photos of his right leg inflamed. He described that his leg was painful and hot. He said that one of those photos showed that there was redness around the sutures and to the right of the leg, but the left leg was healing nicely by comparison. He disagreed that Dr Al Muderis said to him he saw no signs of infection: “the discussion I recall was that I had an infection”. Mr Bruha was not challenged on his evidence as to the courses of antibiotics he had in Australia. Being prescribed antibiotics is consistent with Mr Bruha’s evidence, particularly given Dr Al Muderis’ inconsistent explanations for the last prescription (referred to above).

1039 The applicant submitted that Mr Bruha’s claims that he has suffered “ongoing infection issues”, that he has been on and off antibiotics “for the entire time” after the osseointegration, and that doctors at a wound clinic were concerned about a possible bone infection in his legs, are unsupported by any medical records.

1040 Mr Bruha accepted in cross-examination that he was told by the hospital staff it was better to leave the dressing off the hole so that it could breathe.

1041 He explained that a month after returning to the United States the wound still had not healed, and so he attended a specialty wound clinic. He had tried to take care of it himself at home, but to no avail. His evidence was he visited the wound clinic for two to three weeks. Mr Bruha said the clinic advised he leave the dressing on and keep the wound moist, and that it then healed within approximately three weeks. He said that the doctors were concerned about how long the wound had been open, and of a possible bone infection in that leg and the left leg. Mr Bruha was put on intravenous antibiotics in Bozeman, Montana, before moving to a hospital closer to his town.

1042 Mr Bruha’s evidence that he went to a wound clinic to treat the hole in his shin is supported by an email he sent to Dr Rosenblatt on 6 October 2017. Mr Bruha wrote to Dr Rosenblatt:

I am going to a wound clinic for that open spot on my [right] shin. They are worried because it has been open this long that the bone may be infected. They would like to [do] a CT scan but are worried the metal may heat up, They are wondering how you would deal with this issue? …

1043 This is a contemporaneous record of what he said he was doing and why.

1044 Mr Bruha gave direct evidence of attending the clinic, the period of doing so, that he was given drugs intravenously, and that the wound appeared to have healed. Mr Bruha can give evidence of what he said are the symptoms he experienced at various times, and that he was given drugs that he believed were antibiotics.

1045 Jumping ahead. In early 2020, Mr Bruha said he received advice from a doctor in Montana that he would need to have the implants removed because the infection would not go away and he would otherwise be on antibiotics the rest of his life. He explained he acted on this advice and had his implants removed by Dr Stoneback, an orthopaedic trauma surgeon at the University of Colorado Anschutz Medical Campus.

1046 Dr Stoneback’s evidence was that he examined Mr Bruha on 23 October 2019. Mr Bruha’s case was then presented to a multidisciplinary team. The team’s consensus was Mr Bruha’s chronic pain and drainage symptoms were most likely due to chronic osteomyelitis of his bilaterial tibias, his left side worse than the right. An intravenous antibiotic therapy course was discussed with Mr Bruha, including the possibility of implant removal if his pain subsequently returned. Mr Bruha underwent the course, which resolved his pain within days.

1047 Dr Stoneback’s evidence was that on 21 December 2019, Mr Bruha elected to come off antibiotics and have his implants removed, given his multiple recurrences of infection. Dr Stoneback conducted the surgery on 6 January 2020. He also conducted deep bone biopsies which tested positive for chronic osteomyelitis and infection. Mr Bruha now uses socket prostheses.

1048 Mr Bruha described that he had spikes inserted into his bones in both legs where the implant had been which fed antibiotics directly into the infected bones (Dr Stoneback describes the process as intramedullary antibiotic nail treatment). Mr Bruha went to the hospital every day to have the intravenous antibiotics administered into the spikes, before they were removed six weeks later. Mr Bruha and Dr Stoneback each gave evidence that the infection was gone after the spikes were removed.

1049 The applicant’s submission that removal of the implant is a known complication of the surgery misses the point. It fails to address how that complication materialised, given Mr Bruha’s evidence of ongoing symptoms of infection and being given drugs for it.

1050 The applicant referred to three matters which are said to be inconsistent with Mr Bruha’s evidence about infections: (1) Mr Bruha participating in a 50-mile trek in Sydney with other osseointegration patients (“Amp Trek”) in May 2018; (2) him attending a conference for amputees in Tucson, Arizona in July 2018; and (3) him appearing in a video, made by College Park (a prosthetics company), shortly after that conference in which he is hiking.

1051 Those activities are not inconsistent with his descriptions of infection. Bearing in mind that Mr Bruha gave evidence that he misses the lifestyle he had when he had the osseointegration implants.

1052 Mr Bruha accepted: he saw Dr Al Muderis while in Sydney for Amp Trek; that Dr Al Muderis got him to have an x-ray; and that he went to the clinic to do some walking tests.

1053 Mr Bruha gave evidence that he saw Dr Al Muderis at a conference for amputees in Tucson, Arizona in 2018, and told him he “still had infections”. Mr Bruha explained Dr Al Muderis got down on his knees, pulled up his pants and said words to the effect of: “It looks fine, you’ll be okay”. Mr Bruha said Dr Al Muderis wanted him to wear shorts so that people could see his osseointegration prostheses at the conference. Mr Bruha explained that he was wearing long pants to conceal his legs because, at that time, he had an infection, and his legs were oozing and in pain. He explained that he changed into shorts because Dr Al Muderis insisted that he do so, asking him repeatedly. Mr Bruha maintained that he wore pants when he first arrived because his stomas were not healthy. The applicant put to Mr Bruha that this was a concoction. This seems to be based on a video that shows him wearing shorts at the conference. That video is not inconsistent with Mr Bruha’s evidence.

1054 The video made by College Park promoted the prostheses Mr Bruha was using. When the applicant suggested to him there was nothing oozing out of his stomas, Mr Bruha asked to watch the video again. He pointed out that in one frame one can see a stoma was red at the bottom and that there was ooze coming out. The redness is seen on the video. The respondents submitted that “[t]he purpose” of showing Mr Bruha the video “was to allege that [he] was lying about being infected as he was wearing shorts”.

1055 None of those matters relied on by the applicant are inconsistent with Mr Bruha’s evidence of infections.

Assessment as a witness

1056 Returning to explain the basis of the applicant’s submission, it is contended that Mr Bruha is not a good historian, unreliable, a person of no credit, and “fundamentally dishonest”.

1057 The applicant relies heavily on a text Mr Bruha sent to Dr Al Muderis on 24 February 2023 to submit that he should not be considered an honest and reliable witness. The applicant recited part of it:

This is Chris Bruha, I have a suggestion to see if you have any interest in making a deal.

I have a loan amount of Around 223k to have you do my surgery.

I am asking that you pay me back so I will not be 60 minutes main wittiness’s. …

However if you decide not to pay me back what I feel you took from me I will do whatever it takes.

… I will sign off with you and your attorney’s not become a bigger financial burden if we can agree on an amount between us. …

1058 The applicant submitted that the text message is a “naked attempt at blackmail”, and Mr Bruha’s warning that he would “do whatever it takes” if Dr Al Muderis did not comply is indicative of a willingness to say anything for the sake of damaging him, regardless of whether it is true.

1059 The respondents submitted that the submission misrepresented what Mr Bruha said, explaining that it was clear from Mr Bruha’s evidence that while the amount of money he sought repayment of was higher than what he had paid Dr Al Muderis, the additional amount covered matters associated with his procedure (including loans and other expenditure). They submitted that it was not an extortion attempt. Mr Bruha was doing no more than holding out to Dr Al Muderis that he would cease to cooperate with the respondents if Dr Al Muderis acted honourably by reimbursing him for his losses by reason of his failed surgery.

1060 Sending such a text can properly be criticised. However, the text and its implications are not quite as simple as the applicant portrays. As set out below, the terms of the text considered in full (only part of which the applicant recites) are premised on problems that Dr Al Muderis faces arising because of his lack of patient care being true:

Your poor Pt care is going to ruin you. If I ever failed like you have I would have to repay my customer. I guess you do not play by those rules. …You are a sad idea of a surgeon for sending me home with an open wound that took specialists to heal and almost three years of IV antibiotics. Karma will take care of you in the end I guess.

1061 He is not suggesting that he would concoct evidence, but rather he would not give what he said was evidence of his experience. He was holding out that he would cease to cooperate with the respondents if Dr Al Muderis reimbursed him. It was submitted that Mr Bruha was seeking to make a profit, because the amount sought was more than he spent on the surgery. The amount sought, which is oddly specific, was described as a loan amount, and Mr Bruha gave evidence he took out a loan. As Mr Bruha accepted, the amount was more than he paid for the surgery, but there were other expenses (repaying loans, paying for the removal of the implants). In all the circumstances, I do not agree with the description of making a profit.

1062 I note that another of Dr Al Muderis’ former patients, Mr Mortimer, asked to be repaid for the money he had expended, in a letter dated 12 November 2019, detailing his issues with Dr Al Muderis: see Part 6, Section 6. There was no response.

1063 It is plain that particular care must be taken in assessing Mr Bruha’s credibility and the reliability of his evidence. It appears that the submission in relation to him being a poor historian is, in large part, based on the fact his evidence is disputed by the applicant or is said by Dr Al Muderis to be inconsistent with his conduct (examples are addressed elsewhere).

1064 That said, as apparent from the discussion above, there is support for parts of Mr Bruha’s evidence, including from the applicant. There is also support from evidence in some of the other case studies. Moreover, there is also support for his concern that he had infections, and that he left Australia with an open wound. It is to be recalled also that on medical advice his implants were ultimately removed.

1065 The applicant also alleged that Mr Bruha concocted evidence because of Mr Hernandez. The submission was that Mr Bruha was “wholly happy” with Dr Al Muderis a year after surgery. The applicant cited as examples: Mr Bruha’s trip to Australia for Amp Trek, his last interaction with Dr Al Muderis being positive (when Dr Al Muderis and Ms Roberts expeditiously replaced his dual cone: see below), and his last pre-publication public statement about Dr Al Muderis being “a very grateful social media post”. It was submitted that attitude changed because of dealings with Mr Hernandez, suggesting Mr Bruha rewrote history to help him. I do not accept that submission about him, or similar submissions made about other American patients.

1066 The applicant submitted Mr Bruha (and other patients) had full contact with Dr Al Muderis until his dispute with Mr Hernandez. He explained the absence of messages to Dr Al Muderis after the initial period above was “probably because” Mr Bruha did not need him, as there were doctors in the United States who could assist.

1067 Given how Mr Bruha described Dr Al Muderis’ responses when he raised concerns about infection, it is hardly surprising that he did not request his assistance. It does not follow that the issues did not occur, bearing in mind his implants were removed (which is well before the Publications). It also does not follow he was “wholly happy”. His need to go to the medical clinic because of the condition of the open wound shortly after his return to the United States (which is supported by contemporaneous evidence) suggests otherwise.

1068 There was a later occasion when Mr Bruha contacted Dr Al Muderis for assistance. This occurred when he snapped his dual cone on his left leg in around July 2019, needing a replacement. He agreed that Ms Roberts and Dr Al Muderis organised to have the parts sent to him but said that Dr Rosenblatt helped him after that. He agreed he received his dual cones within a few days. An email from him to Ms Roberts establishes he was grateful for the speed with which his issue was taken care of. Given that they are Dr Al Muderis’ implants, that he contacted them and there was a quick response should be expected. By this time, Dr Rosenblatt and Mr Hernandez were no longer working with Dr Al Muderis, and Ms Roberts told him (and others) that his first port of call was to Dr Al Muderis and herself. I note Mr Bruha was initially charged for the replacement dual cone, which was later waived.

1069 The text and Facebook messages between Mr Hernandez and Mr Bruha provide no support for the submission that Mr Bruha has concocted his evidence to support him. To the contrary, the exchanges reflect an interest in speaking the truth about their experiences. It is also readily apparent that they are aware they may be excluded or removed from osseointegration support groups, and that they will be criticised for sharing their experiences with the media. That there may be offensive language used by the participants in those messages at times does not alter that.

1070 As explained above, I am satisfied that Mr Bruha was not advised by Dr Al Muderis of the risks and complications of surgery before arriving in Australia, and nor was he adequately advised of them while in Australia, in circumstances where his consultation was only the day before surgery. He was provided misleading information. That all impacts on Mr Bruha’s consent. Further, Mr Bruha left Australia on antibiotics (although Dr Al Muderis denied he had an infection). He was treated for those symptoms at a medical clinic shortly after arriving in the United States (and on later occasions). He sought the advice of other doctors. On medical advice, he had chronic osteomyelitis and infections such that his implants were ultimately removed. I am also satisfied in the circumstances that Dr Al Muderis failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Ms Lisa Schaeffer

1071 Ms Schaeffer is a right below-knee amputee who lives in the state of Georgia in the United States. She first learnt about osseointegration in detail at the Amputee Coalition National Conference in Arizona in mid-July 2015, where she spoke with Mr Hernandez. She subsequently emailed Dr Al Muderis’ rooms expressing her interest and completed an online form. Dr Al Muderis personally responded to the email. She underwent osseointegration surgery on 7 October 2015.

1072 Ms Schaeffer was a forthright and impressive witness who provided considered answers. The applicant submitted that Ms Schaeffer told the truth during most of her evidence except for isolated occasions when she concocted evidence because “it is clear that her post-event malice has caused her to veer away from the truth”. I do not accept the evidence relied on by the applicant supports that assertion. I return to discuss this below.

1073 Given the issues in relation to Ms Schaeffer, it is necessary to address the following topics.

1074 First, the steps involved in coming to Australia to undergo her osseointegration procedure on 7 October 2015. The events themselves are not in issue. Ms Schaeffer was required to pay and did pay for her surgery (US$78,067) before she arrived in Australia, and before she had a consultation with Dr Al Muderis. This was before the risks and complications of the surgery were explained. On the applicant’s case, the risks and complications were explained during the consultation with Dr Al Muderis, which occurred on the day before her surgery.

1075 In summary, the online inquiry was submitted by Ms Schaeffer on 25 July 2015, to which Dr Al Muderis responded in a positive manner, informing her a member of his staff would contact her. By 31 July 2015, a proposal for treatment had been sent to Ms Schaeffer. On 5 August 2015, Ms Stewart emailed Ms Schaeffer telling her that she had shown Dr Al Muderis the photos received, to which he said that “surgery would be an option for [her]”. An estimate of between US$50,000 and US$70,000 was provided. The email also requested x-rays and pre-operative medical questionnaires to complete the eligibility process. Ms Schaeffer responded on 6 August 2015, informing Ms Stewart she had an appointment to obtain x-rays on 11 August 2015. On 7 August 2015, a quote for US$78,067 was generated. Ms Schaeffer said that after she sent the documents requested to Dr Al Muderis’ rooms, Ms Stewart called her to say they could proceed with the surgery and said words to the effect of: “Everything looks good, we can go ahead and schedule surgery”. As mentioned above, payment was required before arriving in Australia. Ms Schaeffer completed a pre-admission form for Macquarie University Hospital on 14 August 2015. On 28 August 2015, a letter was sent to Ms Schaeffer confirming her surgery was booked for 7 October 2015. I note Ms Schaeffer’s blog of 21 August 2015 records she had been approved for surgery and had been provided possible dates. She recorded she chose 7 October 2015. Following this, Ms Schaeffer attended a pre-operative consultation locally in Kentucky on 31 August 2015 to obtain surgical clearance from a cardiovascular standpoint. On 8 September 2015 (i.e. after she had been approved for surgery, a date had been booked and she had been invoiced), Dr Basten sent an email to Dr Al Muderis confirming he had completed a psychological assessment of Ms Schaeffer on Skype and noted that she had many positive prognostic factors. Ms Schaeffer did not have any appointments with Dr Al Muderis or any communication with him before travelling to Australia, other than an email exchange about infection as suggested by her orthopaedist (which is not before the Court, with there being no detail as to its contents).

1076 By 11 September 2015, Ms Schaeffer had paid the US$78,067 in full, as required. Ms Schaeffer explained that to do this, she and her husband had to move around some of their investments, take out a loan and borrow money from their son to make the operation possible.

1077 I have addressed the impact of requiring prepayment elsewhere. Explaining the risks and complications of the surgery after payment, and on the day before surgery, impacts on whether any consent is informed in the required sense.

1078 Second, five days before her scheduled surgery, Ms Schaeffer attended a dinner in Sydney on 2 October 2015 (which she posted about the following day) with other amputees and Dr Al Muderis, which he had organised. This social function occurred before Ms Schaeffer had a consultation with Dr Al Muderis. The issues that arise from such events are discussed elsewhere: see e.g. The patients in Part 6, Section 1.

1079 Third, the pre-operative consultation with Dr Al Muderis on 6 October 2015. There is a dispute as to what is said to have occurred at this consultation, with Ms Schaeffer describing it as only a brief interaction of “about 10 minutes – 15 minutes tops”. There was no group consultation as described as Dr Al Muderis’ standard practice. Rather, only Ms Stewart, Ms Bosley, and a Fellow were recorded as persons present at the pre-operative consultation.

1080 Ms Schaeffer’s evidence was that Dr Al Muderis called her fat during the initial consultation and said that she would eventually need a knee replacement because of her weight, which Dr Al Muderis denied. Ms Schaeffer was adamant in cross-examination that the comment about her weight was made, because she said she recalled being offended and insulted by it in front of her husband. Ms Schaeffer also gave evidence that during the consultation, Dr Al Muderis said words to the effect of: “I will always be there as we’re going to be family now”. This is a common theme from the evidence (see e.g. Ms Ulrich’s case study as to his statement that they would have a connection for life) and is a statement of the nature Dr Al Muderis accepted he makes.

1081 Ms Schaeffer was cross-examined about some blog entries she posted, including on the day of this consultation. The applicant submitted that the blog recounted her appointments (including with Dr Al Muderis) and said that the people in the Australian healthcare system were “polite, thorough and professional”. He submitted that Ms Schaeffer’s evidence about a comment on her weight should be rejected because her description sits uncomfortably with the allegation she made for the first time in these proceedings – that Dr Al Muderis insulted her weight at the consultation. I note that Ms Schaeffer’s comment in her blog post was not particular to Dr Al Muderis’ consultation, rather, it appears at the end of the process for that day where Ms Schaeffer met others (e.g. after having her blood drawn). Further, given the personal nature of the comment, it is unlikely that Ms Schaeffer would have referred to any comment made about her weight. I note that it is also apparent from her blog that Ms Schaeffer was late to the appointment as there was a mix up as to the location of the consultation. Ms Schaeffer recorded that on arriving, she and her husband had to wait, and she had several other appointments booked later for other processes. In that context, that the consultation was brief, as she described, is plausible.

1082 Various propositions were put to Ms Schaeffer in cross-examination based on the content of the consultation report. That the report was said to be the source of the question was the clear impression created by the questions asked. It was apparent from her responses, that although she did not have any recollection of various statements, she generally approached the questions on the basis that if the proposition or statement was in the report, it must have occurred, and therefore she agreed. In other words, Ms Schaeffer presupposed the accuracy of the report. For example, although Ms Schaeffer could not recall the discussion of risks beyond infection, after a series of questions addressing whether she was told about a particular risk, she said, “they’re all right there, yes”, meaning that they appeared to be in the consultation report. It is also apparent that Ms Schaeffer assumed that the general risks of surgery would have been discussed.

1083 The risk she remembers and deposes to Dr Al Muderis referring to is infection and him telling her it is:

not a matter of if, it’s a matter of when, you will get an infection. It’s not as if everything is flesh eating. As long as you catch it, you can take antibiotics and you will be fine.

In cross-examination, Ms Schaeffer used those same terms in her recollection of this discussion. That description is not an accurate or complete one but rather downplays the risk. That the risk is “not if, but when”, is not recorded in the consultation report. The report recorded that Ms Schaeffer is a “relatively low risk” patient (a pro forma term frequently used in the consultation reports in evidence). The significance of such a risk being omitted in the consultation report is discussed elsewhere. Ms Schaeffer also did not recall doing a six-minute walking test or timed up and go test. In any event, doing such a test when Ms Schaeffer was not wearing her prosthesis but was using a walking aid (a crutch) seems unlikely, as it would not be a realistic assessment of her position. The artificiality of the report is apparent from such statements as “I am more than happy to organize surgery for her as soon as she wishes”, in circumstances where Ms Schaeffer was already booked for surgery the next day and had been informed of such since 28 August 2015.

1084 Although Ms Schaeffer was advised of some risks and complications, the severity of the risks and complications were downplayed, as the evidence in relation to the risk of infection reflects. In any event, even if the severity of risks and complications were discussed as Dr Al Muderis described in the report, the circumstances he created, including the prepayment, the travel from overseas, and the booking of surgery having already been made for the next day, undermine the consent given.

1085 I accept Ms Schaeffer’s evidence that the consultation on 6 October 2015 was brief. This accords with the evidence provided by other patients. For the overseas patients, everything was already in place, with the surgery booked prior to their arrival in Australia. It can be inferred, in practical terms, that the consultation was a formality given the late stage it occurred. The patient having already made the decision to proceed with the surgery. That is not to suggest that something might not arise in the tests that altered the plans, but subject to that, the surgery was expected to proceed.

1086 The length of the consultation cannot be judged by the consultation report. I accept the respondents’ submission that there was no way that all the matters listed could be discussed in such a short timeframe. That said, if the matters listed were all spoken of, given the number, they could not have been properly discussed by Dr Al Muderis to constitute adequate consent in circumstances where the consultation likely lasted 15 minutes at most. That is a matter of common sense. In any event, this is also the opinion expressed by Dr Stalley.

1087 Fourth, Ms Schaeffer underwent her surgery on 7 October 2015, and it is unnecessary to detail that or the events that occurred while she was still in Australia. She accepted that at that time, she considered Dr Al Muderis to be her hero and she felt fortunate to have had osseointegration.

1088 Fifth, after returning to the United States, Ms Schaeffer attended the Amputee Coalition National Conference, the same conference where Ms Schaeffer had initially learnt about osseointegration and Dr Al Muderis’ work. In June 2016, this was held in North Carolina. She explained that she, and other patients of Dr Al Muderis were asked to wear t-shirts which identified them as part of the osseointegration Australia team, to promote him and his company. They were to be part of the booth promoting the surgery, wherein people could look at their legs (as they were wearing shorts). Mr Hernandez had been asked to organise this for the group. When it was suggested to her in cross-examination that she had been happy to support Dr Al Muderis at the conference, Ms Schaeffer clarified that she attended because she paid to attend the conference just like any other amputee, paid for her hotel, and she is a member of the Amputee Coalition. During that conference, Ms Schaeffer attended a party celebrating Dr Al Muderis, his staff and all his patients that attended the conference. During the hearing, a video was shown of the party. The extent of socialising with former patients impacts their relationship with Dr Al Muderis, particularly in a context where there is a level of dependency on him.

1089 Ms Schaeffer also attended conferences in 2017 and 2018 in Louisville and New Orleans, respectively, to meet with Dr Al Muderis.

1090 In July 2017, the inner screw in Ms Schaeffer’s prosthesis cracked and then broke in half. She reached out to Dr Al Muderis, who said he could fix it when he was in the United States for a conference in Kentucky. In August 2017, she attended a hotel room which she described as appearing to have been set up as a room for treating patients during the convention. She gave evidence that she spent time in what she described as the waiting room before going into the main room, where Dr Al Muderis replaced the inner screw on her implant while she sat on the bed. Mr Lui (who was helping with parts) and Ms Roberts were present. Ms Schaeffer described being sent an invoice for the new screw, but after she sent paperwork indicating the implant was under warranty, Dr Al Muderis’ office did not chase the payment further.

1091 In February 2018, there was a second occasion when an issue arose with her prosthesis. In a similar fashion and again at a conference, this time in a hotel room in New Orleans, Dr Al Muderis looked at her leg and performed an adjustment on her prosthesis.

1092 Sixth, Ms Schaeffer accepted that after she returned to the United States, she messaged Dr Al Muderis at various times seeking help, and she described him responding (although she qualified that as “eventually”), to which I return below. However, the messages became very infrequent over time. After 2019, there appears to be no messages until the last communication in early June 2022. That said, I note that in May 2021, Ms Schaeffer did repost an earlier photograph of her and Dr Al Muderis. Ms Schaeffer accepted in cross-examination that she posted positive messages about Dr Al Muderis.

1093 The applicant submitted that until June 2022, Ms Schaeffer was “happily in contact” with Dr Al Muderis and a “beamingly happy patient”. It was submitted that she had “never ever said a negative word” against him until her dealings with Ms Grieve. As referred to above, the applicant submitted that she concocted allegations to help Mr Hernandez, and that Ms Schaeffer told the truth during most of her evidence except for isolated occasions where she concocted allegations about Dr Al Muderis’ conduct.

1094 The applicant submitted that “[t]he foundation for evaluating Ms Schaeffer’s credit is that her osseointegration has been wholly successful”. This starkly reflects a flaw in the applicant’s approach; simply because surgery is successful, or that a person is happy with the outcome, does not mean they cannot have any complaints or issues with Dr Al Muderis or the process.

1095 As the respondents submitted, Ms Schaeffer had raised some issues with Dr Al Muderis over the years.

1096 Ms Schaeffer gave evidence that after her return to the United States, she felt as if Dr Al Muderis “ghosted” her. She said she would message and sometimes phone him and that although Dr Al Muderis would eventually respond to her, it would take hours or a couple of days.

1097 Ms Schaeffer also gave evidence that she raised some concerns about her prosthesis and stoma with Dr Al Muderis in January, February and May of 2016. Her evidence was that she felt he was not taking her concerns seriously and not really engaging with the issues she was having. This is reflected in some of her Facebook messages in evidence.

1098 On 13 August 2018, Ms Schaeffer reported to Dr Al Muderis and others in his team about a rusting problem in her taper sleeve which could not easily be removed, and which resulted in the cancellation of an MRI she was scheduled to have. She described her recent issue as giving her “some, what could have been really bad, complications”. The email noted that she had not been informed about a protocol requiring the parts be removed and cleaned and referred to speaking to other former patients about this issue. That email included the following:

The last thing we were told was we are family now. But honestly, I kinda feel like the red headed stepchild when it comes to getting help in general.

I understand it is a unique position to be on the front end of technology and it is ever evolving, but not being updated as far as protocols, maintenance, and recall of parts is not very good follow through or after care for your patients (Our OI family).

I get updates from my Vet for my pets and from my auto dealership regularly for any necessary appts. There should be the same type of registry and follow up with your patients. Especially in the event of emergencies.

My OI has gone relatively smoothly with very little issue and I have sung it’s praises to anyone who would listen, many of which have themselves gone on to get the procedure because it is so awesome.

I just feel there are still unaddressed issues when it comes to keeping track of who we are, what we have had done and the inventory of the parts we have in our bodies because clearly issues such as what I recently encountered will come up and quite frankly it’s a scary thing to feel so vulnerable.

1099 I note that although Ms Schaeffer is singing its praises, such praises are directed to the surgery, not the surgeon. Again, this is plainly a complaint. It expresses Ms Schaeffer’s genuinely held concerns. The terms of the email reflect that her concerns were not confined to the issue she raised but had broader import. The statements were made well before the Publications, and certainly well before speaking with Ms Grieve. That email alone demonstrates the applicant’s submission is incorrect.

1100 On 9 August 2019, Dr Al Muderis sent a Facebook message to Ms Schaeffer requesting she post a positive message about him on Facebook:

Dr Al Muderis: Can you please mention on Facebook that I got back to you. Some people are trying to make me look bad and they posted on Facebook that I am not communicating with my patients which is not true. It is not [sic] disheartening to see some people using innocent components like your [sic] to damage my relationship with the osseointegration family.

I would really appreciate it Lisa.

Ms Schaeffer: No problem:)

Dr Al Muderis: Thanks

Ms Schaeffer: Done

Dr Al Muderis: Thank you

1101 It is apparent from the face of the message exchange that Dr Al Muderis was aware at that time, that some patients had posted comments on Facebook regarding his failure to communicate with them. Taking issue with this, his response was to request Ms Schaeffer to counter these posts with a positive post of her own. Although Ms Schaeffer posted something (however I note that she clarified this was a comment on someone else’s post, rather than her own post), the circumstances in which it occurred were solicited, undermining its authenticity as a genuinely held opinion. This is clear in Ms Schaeffer’s affidavit: “I wrote the brief comment because I did not want to cause any issues with Dr Al Muderis”. The request also reflects the importance to Dr Al Muderis of positive comments being made in relation to him. By then, complaints about not responding had been communicated to him (e.g. by Ms Çalan, Ms Todd and Mr Hernandez, etc).

1102 There appears to have been no further communication between Dr Al Muderis and Ms Schaeffer for some considerable time.

1103 Ms Schaeffer gave evidence that how she was treated changed over time. When it was put to her that she continued to obtain his assistance years after her surgery, she responded “[b]ecause we were family”, being a reference to Dr Al Muderis’ description of the relationship he said they would have, mentioned several times above. For example, on 6 September 2019, Ms Schaeffer messaged Dr Al Muderis asking on behalf of her surgeon (she was having an arthroscopy on her left hip) about the implant, and if she needed to take pre-emptive antibiotics. She then sent him some follow-up messages informing him her surgeon had attempted to contact him and asking him to respond. Similarly, Ms Schaeffer described contacting Dr Al Muderis either in relation to an MRI or colonoscopy she had (she could not recall which) “because nobody in the US knew anything about osseointegration or what my implant entailed. So I had to ask the source of it if I could get those procedures done”. As noted above, that sentiment is unsurprising and demonstrates an obvious level of dependency arising from the fact that Dr Al Muderis conducted this surgery (which he described as in its infancy), and the implant was proprietorial. Ms Schaeffer said, she asked him as he was “the authority” on the topic.

Assessment

1104 Returning to the assessment of Ms Schaeffer as a witness. The messages between Ms Schaeffer and Mr Hernandez which the applicant relied on to support his concoction allegation in relation to Ms Schaeffer, properly read, do not do so. Again, some of the messages may appear unpleasant. As Ms Schaeffer described, this was private messaging between friends. Properly read, there is no suggestion in the messages that anything false was said by Ms Schaeffer in giving evidence. To the contrary, the messages proceed on the basis of the truth of the assertions that were coming out. Some comments disagreed with the accuracy of Dr Al Muderis’ evidence. It was put to Ms Schaeffer that she was a “malicious hater” of Dr Al Muderis, on the basis that her experience was wholly positive, it changed her life, and she was (and should be) forever grateful. However, as discussed elsewhere, that conflates several issues. It is also difficult to understand what is said to have occurred as a result of the alleged concoction. It was put to Ms Schaeffer that any complaint she had made in her affidavit or in evidence is a recent invention, which Ms Schaeffer denied. However, with limited exception, no issue is taken by the applicant with the content of Ms Schaeffer’s evidence. Although Dr Al Muderis claimed to have no memory of events, he, at times, said they may have happened: for example, that he may have helped her with her prosthetic component in the United States in August 2017. In part, the applicant’s criticism is that she is giving evidence of her experience when, being grateful for her osseointegration, she should not.

1105 As apparent from the discussion above I am satisfied there was no information given as to the risks and complications of the surgery before it was booked, and payment made. There had been no assessment of her by Dr Al Muderis as to her suitability. The consultation in Australia shortly before the surgery was brief, and any risks then referred to were downplayed. This impacts on whether her consent was informed. Ms Schaeffer had made complaints to Dr Al Muderis after returning to the United States (e.g. as plain from the email recited above). She was used by Dr Al Muderis to promote his surgery to others at a conference and to counter negative posts made about his aftercare online. She had consultations with him in the United States to fix issues with her implant. I am also satisfied in the circumstances that Dr Al Muderis failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Ms Michelle Koolhoven (née Ortiz)

1106 Ms Koolhoven is a patient from the Unites States. She has been a left above-knee amputee since 22 June 2013 and previously mobilised using a socket prosthesis. Ms Koolhoven found out about osseointegration through Mr Hernandez’s posts about Dr Al Muderis in an amputee Facebook group. After reaching out to Mr Hernandez, she subsequently completed an online enquiry form through Dr Al Muderis’ website on 18 August 2015, expressing her interest in osseointegration. Ms Stewart replied to Ms Koolhoven’s enquiry by email on 19 August 2015. On 5 November 2015, several events occurred: Ms Koolhoven submitted her responses to a health questionnaire; Ms Bosley sent Ms Koolhoven a quote for osseointegration surgery, totalling US$78,000 but discounted to US$58,000; and Ms Koolhoven was sent a proposal for treatment and care. Dr Al Muderis agreed in cross-examination that he provided the instructions as to the amount of the estimate. On 10 November 2015, Ms Stewart sent Ms Koolhoven a letter confirming she was booked for surgery on 13 January 2016, but subsequent correspondence indicated the surgery was rescheduled to 10 February 2016. On 27 November 2015, the invoice for US$58,000 was issued to Ms Koolhoven. On 7 December 2015, Dr Basten completed his psychological assessment of Ms Koolhoven. Her pre-admission form was completed on 20 December 2015. Ms Koolhoven paid the invoice on around 27 January 2016. She arrived in Australia on about 4 February 2016, met Dr Al Muderis for the first time on 8 February 2016, and underwent osseointegration surgery on 10 February 2016.

1107 Ms Koolhoven presented as a credible and reliable witness. The applicant accepted that she was a responsive and “wholly honest” witness whose evidence could generally be accepted, but there are some aspects which should not be accepted as she is mistaken (for example, the shortening of her leg), which are addressed below.

1108 There are several points to be addressed.

1109 First, at the time when the fee estimate was provided on the instructions of Dr Al Muderis, he only had the online questionnaire (which Ms Koolhoven completed on the same day). Dr Al Muderis agreed in cross-examination that as at the date of the fee estimate, he had neither met nor examined Ms Koolhoven. His evidence was unsatisfactory on this topic, suggesting he may have had a telephone call with her. As referred to in relation to Ms Ulrich, Dr Al Muderis had previously said that he would not provide a fee estimate without a clinical assessment and an online health questionnaire was insufficient for these purposes. His answers to this line of questioning strengthened from not recalling speaking to her, to suggesting he “may have” spoken to her, to he “would have” spoken to her, despite having no recollection and there being no evidence to support this occurring. There is no record of any conversation. If there had been a conversation sufficient to enable a clinical assessment so as to send a fee estimate (and ultimately an invoice), one would expect it to be recorded. I do not accept his evidence. Ms Koolhoven does not give evidence of any such conversation, and it was not suggested to her that there was one. Rather, her evidence was she did not speak to Dr Al Muderis before her arrival in Australia.

1110 Second, Ms Koolhoven paid the invoice, as she was required to, before travelling to Australia. At that time, Ms Koolhoven had not met Dr Al Muderis and he had not told her of the risks and complications of surgery. Nothing in the documentation sent to her before then covered such topics, and in any event, that would not have been sufficient or appropriate. Dr Al Muderis described in his affidavit that he provided Ms Koolhoven with “a detailed information sheet about post-operative care”. The document exhibit for that proposition does not contain such information. Rather, the document referred to is a generic document not tailored to Ms Koolhoven’s situation. The proposal document Ms Koolhoven was sent is referred to at [1106] above, and as Dr Al Muderis conceded, contained no information about the risks and complications of osseointegration surgery. There is also nothing in the proposal, or hospital admission information pack dated 10 November 2015 about who will be responsible for post-operative management for overseas patients like her. The impact of prepayment on informed consent is addressed elsewhere and there is no need to repeat that discussion: see e.g. Observations about the international patients, below.

1111 Third, there is a dispute in the evidence about whether Dr Al Muderis told Ms Koolhoven that he would need to shorten her leg to complete the osseointegration. Ms Koolhoven denied this, stating that Dr Al Muderis told her that the leg would be stronger and better in terms of mobility if they kept the length the same. This is in a context where Ms Koolhoven’s evidence is that she was concerned from the outset about the length of her leg, was already having problems with her socket because of it and as a result, raised the issue with Dr Al Muderis.

1112 The respondents submitted that at the very least, the issues with Ms Koolhoven’s leg length should have been carefully considered and documented prior to and at the time of surgery. There is no evidence of any measurement being taken or any planning done for how her amputated limb would interact with her new prosthesis in the lead up to the surgery, other than a cursory reference to it in the consultation report dated 8 February 2016 that to:

achieve equal knee height, her femoral stump will need to be shortened to allow a clearance of 150mm. This will allow sufficient clearance of the prosthetic limb in walking and will give her a more natural gait.

Ms Koolhoven disputed this was said at the consultation and gave evidence that she had never seen the letter. I note that the operation report makes no reference to the amputation length.

1113 The applicant submitted that as this relates to a medical issue, it is more likely that Dr Al Muderis and the consultation report are correct. Ms Koolhoven was adamant that Dr Al Muderis did not tell her that her leg needed to be shortened and posed the question in cross-examination of why it was not ultimately done, if Dr Al Muderis had discussed it with her. Regardless, following surgery, Ms Koolhoven remained of the view that the length of her leg was too long, because when she sat down with her prosthetic leg attached to her implant, the knee joint component extended way beyond the length of her right knee.

1114 I note that on repeated occasions after the surgery, Ms Koolhoven raised with others the length of her leg, and the problems it was causing. There is documentary evidence supporting her concerns. For example, there were a series of communications in July 2017, after Ms Koolhoven had an x-ray taken which she sent to Dr Rosenblatt, asking whether there was a problem. Ms Koolhoven’s evidence was that she requested a shorter dual cone because of problems with her knee heights. Upon receiving the x-ray, Dr Rosenblatt wrote to Mr Laux, a clinical prosthetist working with Dr Al Muderis, saying: “I thought she looked like her left knee joint is lower than the non amputee side”. Mr Laux responded in an email of 12 July 2017: “a normal and textbook position of a prosthetic knee joint axis is 15mm more proximal than the contralateral sound side”. I note this accords with Dr Stalley’s evidence that absolute equalisation of leg length is ill-advised because the prosthesis may catch on the ground and therefore, he aims for a 1 cm difference (with anything above 2 cm being ill-advised). Mr Laux explained in that email:

if we made them both the same height in full extension it would result in a shorter shank/longer femoral section of the prosthetic knee in full flexion, which is disadvantageous when sitting.

He said Ms Koolhoven’s dual cone should be shorter to improve structural stability, to allow a closer approximation of the anatomical knee joint height and also provide her with maximum strength of the component.

1115 It appears that before that email exchange between Dr Rosenblatt and Mr Laux, Ms Koolhoven received an email from Dr Rosenblatt on 11 July 2017 stating, “I reviewed your x-rays with [Dr Al Muderis] and [Mr Laux] and everyone agrees they look great! Perfect alignment and good length!” Despite this response, it is clear Ms Koolhoven’s concerns about her leg length were not alleviated as she asked about changing her dual cone and enquired about a “connector with extremely short build height”. Dr Rosenblatt replied he would not change the dual cone because of the difficulties in removing it, with which he said Dr Al Muderis agreed. I note that Ms Koolhoven continued to enquire about solutions for her leg length, as evidenced by a Facebook message to Dr Al Muderis on 15 June 2019:

Hi I am wondering if you make a connector that has low build height we are having do much problems as I don’t have enough room for prosthetics and my knee center is always too long it would help if we can get connector with minimal build height? Thank you

1116 And again in September 2019:

Hi Munjed … can we take up my leg anymore so we can put a shorter dual cone in to give me more room as it’s a problem cause I’m so long

…

I hear you have a new dual cone out too that is stronger I would like to see that I get that as well and hopefully the shorter one but I feel we may need to take my leg up some more refashioned.

1117 As is clear from the evidence, whatever was said during the consultation about the length of her leg, its length still caused ongoing issues for her, long after her surgery.

1118 Fourth, the applicant submitted that Ms Koolhoven was a “wholly happy patient” and “overwhelmingly positive” about him, until she was told that she was given a defective part, after which she became very agitated when she sought to find out what part she had been given. The applicant submitted that Ms Koolhoven was concerned that she had been given the Type B dual cone that Mr Hernandez had said was recalled.

1119 That submission is not supported by the evidence. Ms Koolhoven accepted that she posted positive messages on social media about Dr Al Muderis. She explained that she is “not one to be negative”. When asked why she had posted positive messages after she experienced the problems she described in evidence, she explained:

… the ones that I was posting that were positive in 2017, I hadn’t started infections yet and I was – I guess I was finally convinced that I was just going to have to deal with having this rotation problem and hope kind of for the best. And also at that time I had no other person that I could actually get help with osseointegration. So I mean, it’s a good idea to keep that person kind of close to you in a way.

1120 That accords with the evidence of other osseointegration patients, from the United States and Australia (e.g. Mr Wynne, Ms Ulrich and Ms Schaeffer).

1121 The problems Ms Koolhoven experienced after her surgery as she described in her evidence, including, amongst other things, the lack of prosthetists with any training enabling them to treat her, her fall and safety concerns of her implant, the infections, and the unequal leg lengths, are all referred to in documentation at the relevant contemporaneous times.

1122 To illustrate, after her return to the United States, Ms Koolhoven experienced difficulties with finding a prosthetist capable and willing to attend to her prosthetic needs. In November 2016, she contacted Mr Laux explaining this issue. It is evident from the evidence that Mr Laux well understood that there were insufficiently trained prosthetists in the United States capable of working with Dr Al Muderis’ osseointegration implants. To that end, he described that there had been discussions with the Osseointegration International team about the need to train or accredit prosthetists in the United States. Nothing eventuated. Mr Laux described that as at November 2016, he had been discussing this with Dr Al Muderis for a few years. The suggested training never eventuated. The response from Mr Birbas of Osseointegration International (Dr Al Muderis’ company) to Ms Koolhoven’s request for help in 2017 (being after she had her fall) was that it would take time to educate others. He also suggested to Ms Koolhoven that she could either see a prosthetist “familiar with OI in Orange County, Phoenix” or sign a legal waiver in respect to the work done by her local prosthetist.

1123 In relation to her fall, which occurred about seven months after returning to the United States, Ms Koolhoven’s evidence was that the internal screw inside her implant broke. She said that this affected the alignment of her dual cone, and her walking ability and she was concerned about the safety of her implant as a result. On 19 February 2017, she reached out to Dr Al Muderis’ office by email, asking for documentation explaining that the temporary solution proposed (by fixing the dual cone adapter, rather than replacing it, as was ultimately required) would be safe for her. Ms Stewart responded, referring to a discussion with her the previous week, that Ms Koolhoven needed to get the dual cone tightened by the internal screw, and that she should see a prosthetist to get it properly aligned. She was told to contact Mr Hernandez for his prosthetist’s details. I note that his prosthetist was in Arizona, and Ms Koolhoven lived in California, a three-hour drive away. The next day, 20 February 2017, Ms Koolhoven emailed again requesting a response and explanation from Dr Al Muderis as to whether the proposed solution would keep her safe and whether she would have the same safety as before. Having received no response, about five weeks later, on 24 March 2017, Ms Koolhoven chased up the office for a response. She was told by Ms Stewart that as her concerns pertained to a safety issue for the designer of the implant and surgeon responsible for her care, it was suggested that she contact Dr Al Muderis directly, which she did. In his response on 26 March 2017, Dr Al Muderis said there were two safety mechanisms, which minimised but did not eliminate risks of fracture. There was approximately a five-week delay before Ms Koolhoven’s questions as to the safety of her implant were responded to. In so far as Dr Al Muderis appeared to suggest in cross-examination that there were “extensive” communications happening at that time with her, that is inconsistent with the terms of the emails and Ms Koolhoven’s follow-up requests. Contrary to what Dr Al Muderis said, it is not supported by any other evidence (such as texts or Facebook messages), rather his answer was provided as an explanation only when he was questioned about the delay in responding to Ms Koolhoven’s concerns. Had Ms Koolhoven been satisfied with the responses that she received (if any), she would not have needed to resort, as she did, to sending follow-up emails.

1124 After Ms Koolhoven’s fall, the temporary measure suggested by Dr Al Muderis of tightening the screw, left her without the full safety mechanisms in the implant and constantly scared of falling.

1125 I note that between about March and June 2018, it appears that Ms Koolhoven saw Dr Rosenblatt several times, which included him replacing her dual cone for the newer Type B dual cone in March 2018. Ms Koolhoven had issues with the result, including increased drainage from the stoma. On 18 June 2018, Ms Koolhoven underwent a further exchange procedure putting in a new Bres Medical dual cone. A consultation report dated 19 June 2018, dictated by Dr Rosenblatt on behalf of Dr Al Muderis contains this information. It appears from the consultation report that the Type B dual cone used in March 2018 did not have an anti-bacterial coating and was thought by Dr Rosenblatt to account for the increased drainage Ms Koolhoven experienced.

1126 Thereafter, Ms Koolhoven’s evidence was that she had constant infections, oozing and pain. Given the circumstances, Ms Koolhoven naturally sought Dr Al Muderis’ assistance. Dr Al Muderis said that they exchanged regular messages during this period. While there are text messages between Ms Koolhoven and Dr Al Muderis in the three months from August 2018, the respondents described the messages as reflecting the fact that Ms Koolhoven was in a “terrible” situation and was begging for assistance. That is an apt description of those exchanges. Although Dr Al Muderis responded, at least generally, it could well be said that little was given by way of answers. To illustrate just a few of the message exchanges:

24 August 2018

Ms Koolhoven: Hi Munjed I just started Bactrim today but I just wanted to tell u something is not right my leg has never done this or hurt.. maybe this dual cone is causing it but something isn’t right thanks

Dr Al Muderis: Let me know how it feel in two days

28 August 2018

Ms Koolhoven: Munjed things don’t seem To be getting any better please let me know what to do

30 August 2018

Ms Koolhoven: Munjed checking in wanting to know the game plan please

31 August 2018

Ms Koolhoven: Ok can you please get in touch with me hoping we have a plan

…

7 September 2018

Ms Koolhoven: Munjed can you call me please

Munjed I have these MRI Contrast results and stuff did I do something wrong I’m scared and feeling really alone

Munjed are you free to talk

I’m in extreme pain I’ve taken all antibiotics I’ve been so patient.. I am being persistent because I’m telling you something is wrong.. from what it sounds like I’m going to a consultation? I will be traveling alone but this is getting progressively worse.. please get in touch with me. … I mean I’m not a science project .. Munjed I don’t believe I’m over reacting please I don’t know what I would do if I loose my implant I just don’t think I could take it

It’s hard to keep it together I will try and do my best but maybe I’m a little confused about what exactly Robert [Rozbruch] In (NY) knows about my situation (Is he apart of Osseo group looking after me for you) I just need to know that if I whisk off to New York he will take care of me “As if I were in Sydney”. … I will have to book the flight cause I just can’t put this off.. As far as I knew and was assured you have approved everything all along. I’m sorry I’m so upset but this is not my fault and it’s very scary and upsetting because this is already affecting my house with just my Son and I. So if you can kindly try to rest assure me that I will be taken care in NY I probably would feel a hell of a lot better with a small sense of relief and security

What exact type X-Ray angle or view should they be

Dr Al Muderis: Just a femur x Ray AP and Lateral

…

8 September 2018

Ms Koolhoven: So do you think we should replace the dual cone immediately with one that’s not been tampered

Dr Al Muderis: Yes once we find out what is going on.

Ms Koolhoven: Ok so what do you need me to do to find out. I am being persistent as I felt something was wrong so I spent the whole day at the hospital to get answers

…

Ok I still need the know what we are going to do? I have this other connector too but no prosthetist has ever been able to fit me with it cause there is no room .. it’s not that I don’t want to use it .. do u need it back ? I just feel we’re not on the same page I need to know you have my back are we together

Dr Al Muderis: Can your u send me a photo of it

Ms Koolhoven: Yes it’s currently in the closet I’ve never got to use .. tired of things not going my way,. .. that’s your only response to what I said

…

3 October 2018

Ms Koolhoven: I wished this little conversation would of been a little more reassuring kinda rubbed me the wrong way

1127 This appears to suggest that Ms Koolhoven on many occasions communicated her fears and chased Dr Al Muderis for an answer and information to alleviate her concerns. As to those exchanges, in cross-examination Ms Koolhoven described:

Well, I mean, he was kind of responding to me. But the fact that I knew that I was having an infection and I knew I was getting, you know, sicker by the moment and it was – I was just getting pushed back and nobody had an answer. And so … I had to kind of advocate for myself … to let him know there’s something wrong with me and I am sick and I need some help. And I just – you know, when some – you have an infection going, who knows what can happen? And so [I] felt I wasn’t getting addressed in time.

1128 As the applicant put to Ms Koolhoven, Dr Al Muderis did organise for her to see Dr Rozbruch to address the issue with her dual cone, but as she said, it was at her own “costly expense”. Dr Rozbruch operated in New York. Further, it took three months from when she first contacted Dr Al Muderis about the infections arising from her dual cone in August 2018 for Ms Koolhoven to have an appointment to see Dr Rozbruch in October 2018. I note that Ms Koolhoven was sent back to California following this appointment. It was only after this initial consultation with Dr Rozbruch that a plan was put in place for Ms Koolhoven to have surgery and debride her leg, which occurred after Ms Koolhoven travelled to New York on a second occasion in late October 2018. This delay was despite Ms Koolhoven telling Dr Al Muderis that because of the pain she was experiencing, she couldn’t wait that long for a solution. When questioned on this in cross-examination, Dr Al Muderis’ evidence was:

That plea was her feeling about her condition. I consulted with her. I consulted with Dr Rozbruch, and there was no clinical need – Dr Rozbruch obviously didn’t feel that there was a clinical need for him to see her earlier than that. I could not make any other changes. I don’t have control on Dr Rozbruch’s appointments, and if she was in a serious emergency situation, there is a close hospital that she can go to and she would be attended to.

1129 Indeed, in the intervening period, Ms Koolhoven saw her local GP and made two trips to the emergency room. However, she explained the difficulties with doctors not being familiar with the surgery, or the implant, which resulted in her being sent home. Dr Al Muderis’ evidence above attempts to downplay his involvement in Ms Koolhoven’s situation. For example, Dr Al Muderis asserted in his affidavit that he is “not able to provide post-operative care to a patient in the United States”. As the respondents submitted, that is disingenuous. I agree. He accepted he was responsible for Ms Koolhoven as her surgeon. That responsibility did not end when she returned to the United States. It also directly contradicts assurances he gave to other patients from the United States, such as that given to Ms Ulrich that, “if you have surgery with me, we will have a connection for life” and “you’ll need me if anything goes wrong” (and see e.g. Ms Schaeffer’s evidence above that he said “I will always be there as we’re going to be family now”).

1130 The messages exchanged during this time also reflect that Dr Al Muderis told Ms Koolhoven that he disagreed with Dr Rosenblatt’s approach to handling her issues. Further, Ms Koolhoven was having difficulties obtaining her medical records from Dr Rosenblatt and raised this with Dr Al Muderis, to which she received no response. On 20 September 2018, Ms Koolhoven asked Dr Al Muderis why he could not attend to her when he was in the United States, to which he replied that Dr Rosenblatt would “report [him] to the medical board if [he sees] any patient”, and that “he is threatening us”. I note that Dr Al Muderis did not explain he is not licensed to practice medicine in the United States. It will be recalled that Dr Rosenblatt treated her, according to the consultation letter, on behalf of Dr Al Muderis, but by this time, there had been a falling out between Dr Rosenblatt and Dr Al Muderis. Ms Koolhoven, as a patient, was caught in the middle of this, a matter Dr Al Muderis refused to accept.

1131 In 2019, there was intermittent contact between Ms Koolhoven and Dr Al Muderis, primarily about problems with the components of her implants. The text messages again reflect that it was Ms Koolhoven who (to use an earlier term she referred to) was advocating for herself and chasing up inquiries made with Dr Al Muderis, as she was looking for a solution. This is the problem she described she had since her fall in 2016. After persistent enquiries by Ms Koolhoven, Dr Al Muderis eventually said he had a “great plan” to fix it with Dr Rozbruch, but the surgery was cancelled, with her being informed that it was Dr Al Muderis who had done so. Ms Koolhoven did not accept Dr Al Muderis’ denials of doing so, given, as she described, it was his plan. Ms Koolhoven gave evidence that the alignment problem still existed at the time of her giving evidence. She said it was a design problem, and that “you would think the designer of the implant would want to fix the problem”. Ms Koolhoven also gave evidence that she still has problems with infections and her leg is always oozing.

1132 In 2019/2020, Ms Koolhoven consulted Dr Stoneback, who advised her that given her unequal leg lengths, history of infection and redundant soft tissue envelope, she should have the implant removed, with treatment for infection followed by a higher revision to address the uneven leg lengths. This did not occur at that time due to insurance issues.

1133 Both Dr Stoneback and Ms Koolhoven’s evidence is that repeated requests by them for information about what the dual cone (which was used in her leg) is made of, have not been answered.

1134 As apparent from the reasons above I am satisfied that there was an inadequate disclosure of the risks and complications (given the circumstances), which impacts on Ms Koolhoven’s informed consent, and there was inadequate aftercare. Dr Al Muderis failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Mr Jeff Ladouceur

1135 Mr Ladouceur was involved in a hit and run in 2012 following a motorcycle accident, which caused him to suffer multiple injuries, including a broken hip and crushed femur. He underwent an amputation of his right leg below the knee in 2012. In around 2014, after several unsuccessful surgeries he was advised to get an amputation above the knee, which he did.

1136 Mr Ladouceur gave evidence that in around 2017, due to issues he was having with his socket prosthetic and skin grafts, his prosthetist recommended Mr Ladouceur attend a conference in Las Vegas to get more information about osseointegration, which he did. Mr Hernandez was one of the speakers at the conference. In cross-examination, Mr Ladouceur accepted that Dr Al Muderis was also at the conference. Mr Ladouceur said he spoke to Mr Hernandez and got the impression that he worked with Dr Al Muderis. Mr Ladouceur was adamant that Mr Hernandez told him about a conference in New York which he and Dr Al Muderis would be attending, where the latter could assess Mr Ladouceur’s candidacy for osseointegration. I note from the outset that Mr Ladouceur did not ultimately proceed to have osseointegration surgery with Dr Al Muderis (but rather with another surgeon).

1137 The circumstances in which Mr Ladouceur travelled to New York to see Dr Al Muderis should be uncontroversial. He received an email from Ms Roberts dated 9 May 2018, advertising a clinic to occur on 9 June 2018. In a further email from Ms Roberts dated 6 June 2018, Mr Ladouceur was requested to bring recent x-rays with him to the clinic, which Mr Ladouceur understood were required for Dr Al Muderis to assess his suitability for osseointegration. Ms Roberts accepted in cross-examination that she was coordinating a clinic in the United States and the purpose of the clinic was to meet and examine patients. She also accepted that Dr Al Muderis asked her to make sure the patients who came to the clinic had recent x-rays with them.

1138 Mr Ladouceur said his consultation occurred on a couch in a corner of the public conference room and lasted around 15 minutes. He recalled Ms Roberts had a laptop and pulled up images of his hip and leg. Ms Roberts accepted in cross-examination that although she did not recall the interaction with Mr Ladouceur, this was a practice she would have done at the clinic. Dr Al Muderis also accepted in cross-examination that when he saw patients at the hotel, he would look at their legs and their x-rays. Mr Ladouceur said Dr Al Muderis told him he had seen the images, meaning the x-rays. This is consistent with Ms Roberts’ evidence in cross-examination where she said Dr Al Muderis would typically say something along the lines of, “I can see your x-rays”. Mr Ladouceur said Dr Al Muderis asked him to remove his prosthesis so he could see the stump, then proceeded to look at the stump, and felt around it briefly. Mr Ladouceur gave evidence that soon into the consultation, Dr Al Muderis said that he could help him and told him he was a candidate for osseointegration. He said Dr Al Muderis expressed no reservations about the surgery and did not discuss any of Mr Ladouceur’s medical issues, including the titanium mesh in Mr Ladouceur’s hip. Mr Ladouceur also said that during the consultation, there was no mention of any risks, physical therapy follow-up or the care required to look after the stoma. Mr Ladouceur said he raised the issue of cost because of his financial concerns, following which, Dr Al Muderis quoted him a discounted price of US$50,000 (from US$80,000). Mr Ladouceur recalled being taken aback by the amount, but considered it kind of him to make the offer.

1139 I accept there are some unsatisfactory aspects of Mr Ladouceur’s evidence, of which I have taken into consideration and addressed below. But his evidence as to what occurred at the consultation and the circumstances in which he attended it, is supported by other evidence.

1140 I accept that prior to attending the New York clinic in June 2018, Mr Ladouceur had sent earlier communications to Dr Rosenblatt on 13 December 2017 in which he provided his email address, and also to Ms Roberts on 9 February 2018, stating that he was unable to “afford this surgery”. However, I do not accept the applicant’s submission that Mr Ladouceur would not have attended the clinic and was not examined as he says, because Mr Ladouceur had already been assessed by Dr Rosenblatt as suitable, and Dr Rozbruch could have performed the surgery as a local alternative.

1141 Dr Rosenblatt had not assessed Mr Ladouceur as suitable for surgery. Rather, the emails and consultation report in evidence reflect that although he had seen Mr Ladouceur’s x-rays, Mr Ladouceur wanted to consider his options after talking to Dr Al Muderis. Notwithstanding the fact that an email was sent thereafter to Mr Ladouceur by Ms Roberts on 8 February 2018 stating that Dr Al Muderis had looked at his scans and wanted to discuss them with him, there is no evidence that this occurred. Rather, the invitation to attend the clinic in New York months later was issued with a subsequent request to Mr Ladouceur to bring his recent x-rays. Within that time, there is no evidence any in-person consultation had occurred, nor is there any evidence Mr Ladouceur had spoken to Dr Al Muderis, let alone met him. Mr Ladouceur travelled, it appears from Las Vegas, to attend the clinic where Dr Al Muderis was “to meet and examine” him in person, according to the invitation from Ms Roberts. Similarly, I do not accept the submission that it is unlikely that Dr Al Muderis looked at his x-rays while talking to Mr Ladouceur at the clinic as prior emails reflect they had been reviewed at an earlier point in time. Even if Dr Al Muderis had previously reviewed Mr Ladouceur’s x-rays, it does not follow that he did not review them again at the clinic, particularly because this was the first occasion that Dr Al Muderis had met Mr Ladouceur in person (noting the invitation also asked patients to bring their recent x-rays). Given that Mr Ladouceur was being assessed, it is probable (and would be expected) that Dr Al Muderis reviewed the x-rays in his presence. Mr Ladouceur’s evidence as to the circumstances in which he travelled to New York for the clinic is supported by the documentary evidence.

1142 It was put to Mr Ladouceur in cross-examination that he went to New York, not to be assessed, but to discuss where he should have the procedure and who should perform it. He denied this, stating that he went to be assessed and explained that this was the reason he brought his x-rays and was examined in the conference room. No details of a purported discussion regarding the procedure were suggested to him or provided by Dr Al Muderis. I find that Mr Ladouceur went there to be assessed and was assessed, which is supported by Ms Roberts’ evidence in cross-examination and the email which Dr Al Muderis had instructed Ms Roberts to send (informing patients of the clinic). Mr Ladouceur’s evidence as to the clinic and the nature of the examination is also supported by other American patients who received a similar invitation or otherwise saw Dr Al Muderis while he was in the United States. This is seen, for example, in the case of Mr Wynne, who was asked to remove his pants, obviously to enable Dr Al Muderis to look at his stump. It is also supported by the description of what occurred in relation to Mr Bruha, described in the letter to his insurer, referred to above.

1143 It is also entirely plausible that Mr Ladouceur raised the issue of costs at the time of meeting Dr Al Muderis, given his financial circumstances. It is a natural question. This is so, even though Mr Ladouceur had previously understood that the surgery would be US$80,000. It is unclear where this understanding came from. In any event, there had been no discussion with Dr Al Muderis about costs before New York. There is evidence of other patients in the same circumstances, discussing the cost of surgery during initial consultations with Dr Al Muderis (e.g. Ms Ulrich, Mr Bruha and Ms McIntyre). There is also evidence of Dr Al Muderis telling patients he would give them a discount, and a deposit was needed to secure their place in the operation schedule (e.g. Mr Smith).

1144 It is also entirely plausible that Dr Al Muderis and Ms Roberts gave the impression they were very busy. Such an impression was clearly understood by Mr Ladouceur as early as 9 February 2018, in an email he sent to Ms Roberts stating, “I know your a busy clinic and I did not intend to waste your time”, which was also foreshadowed by the email Ms Roberts sent to patients on 6 June 2018 (referred to above) ahead of the osseointegration clinic, anticipating that “[i]t will be a busy day with lots of people attending”.

1145 However, I have concerns with Mr Ladouceur’s evidence, particularly that he felt at the time, that his dealings with Dr Al Muderis were unpleasant, and that they pressed him for a decision the next day, given the amiable email which appears to be from his email address and in his name, dated 18 June 2018. His explanation for this email was unsatisfactory. That said, given the evidentiary support for what happened at the time of the examination in New York, I do not consider that impacts on his reliability on that aspect. The email in which he thanked Ms Roberts and Dr Al Muderis for the compassion they showed in New York, is not inconsistent with an offer to discount a fee to enable him to have the surgery. Rather, that is consistent with what some other patients have described (e.g. Mr Smith). The email dated 18 June 2018 can be interpreted in one sense with a note of finality as a polite way of declining any offer made, or to discontinue any interactions with Dr Al Muderis’ team, particularly given there is no evidence of any further communication between Mr Ladouceur and Dr Al Muderis, Ms Roberts or Dr Rosenblatt after this email.

1146 The applicant’s submission that only Mr Ladouceur’s evidence describes what happened at the clinic in New York, is not correct. The terms of the invitation to attend the clinic which described what was to occur, with the follow-up email to bring recent x-rays, speak for themselves. Further, the evidence concerning accounts of what happened at other clinics that Dr Al Muderis conducted in the United States, is also relevant and it supports the plain meaning of the invitation to attend the clinic.

1147 I am satisfied that the consultation occurred as described by Mr Ladouceur, and that he raised the question of cost, and was offered a discount.

Ms Lisa Çalan

1148 Ms Çalan lives in Turkey. She is a filmmaker. On 5 June 2015, while attending a pro-Kurdish Peoples’ Democratic Party rally in Turkey, she became an above-knee double amputee after the Islamic State detonated a bomb in the crowd. She subsequently underwent many surgeries. She mobilised using a wheelchair at that time, although she was told she would be able to walk with a socket insertion.

1149 Ms Çalan gave evidence by video link from Turkey. Her evidence was given through an interpreter. She was an honest, credible, and generally reliable witness.

1150 The applicant submitted that Ms Çalan generally presented as direct and responsive, but her evidence about her medical condition was at odds with her own contemporaneous photographs and video which presented a different picture. He submitted that the Court should prefer the contemporaneous evidence where it conflicts with her evidence, and her oral evidence over her affidavit. As apparent from the discussion below, I do not accept that submission as to inconsistency. The applicant’s submission in respect to the photographs is advanced on a misconceived basis.

1151 Ms Çalan gave evidence that she came across information about osseointegration and Dr Al Muderis in early 2017. On 11 October 2017, she underwent bilateral transfemoral single-stage osseointegration.

Risks and complications

1152 In enquiring about osseointegration and, later, preparing for surgery in Australia, Ms Çalan corresponded with Dr Rosenblatt and other members of Dr Al Muderis’ team via email. Ms Çalan, who speaks Turkish, required an interpreter or translator to communicate in English. She relied on English-speaking friends to translate what doctors said to her in person, in writing and over the phone.

1153 On 6 March 2017, Ms Çalan’s case was presented to the Musculoskeletal Reconstruction and Osseointegration Clinic. At the clinic, the team, who included Dr Al Muderis, Dr Rosenblatt and Dr Tetsworth, discussed Ms Çalan’s situation. Ms Çalan did not attend. There appears to be no record of this consultation apart from a consultation report dated 16 August 2017, which was emailed to her. At this stage, Dr Al Muderis had not spoken to Ms Çalan and there is no evidence that she had been assessed for her suitability for the procedure by a pain specialist or a psychologist. Rather that report records the conclusion was based on x-rays, as well as her medical history. She had not undergone a physical examination. Despite this, Dr Al Muderis and the team concluded that she “would be an excellent candidate to undergo bilateral, transfemoral single-stage osseointegration procedures”.

1154 The consultation report is brief. It contains no reference to potential risks or complications of the surgery. According to Dr Al Muderis, it was not translated. Dr Al Muderis was aware that Ms Çalan did not read or speak English. The report concluded by inviting “Ms Çalan to Australia to undergo bilateral transfemoral osseointegration procedures as soon as possible”.

1155 Dr Al Muderis was cross-examined about the report’s lack of reference to risks and complications. His answers were unsatisfactory. After accepting that the report did not contain references to those matters, he qualified his answer by saying that the four research papers referred to at the bottom of the report “would” discuss risks of surgery or would “very likely” represent risks and complications. As the respondents submitted, he gave those answers to overcome the failure of the report to address any risks or complications of the surgery. That being so, the reasoning proceeds on the basis that Ms Çalan could have downloaded the scientific papers and read for herself what risks or complications she might face (bearing in mind that she lives in Turkey and does not speak or read English).

1156 On 16 July 2017, Dr Rosenblatt provided Ms Çalan with an estimate of fees totalling AU$113,100. In his covering email, he explained the estimate reflected a discount of more than AU$50,000. As referred to above, on 16 August 2017, the report was sent to Ms Çalan. On 20 August 2017, she completed a pain survey, which disclosed that she was routinely suffering from excruciating pain and provided details (including that it interfered with her life “quite a bit”). Ms Çalan also completed other forms required, for example, hospital admission.

1157 By 12 September 2017, Ms Çalan was booked in for double osseointegration surgery, confirmed for 11 October 2017. By 4 October 2017, she had paid for the surgery, being AU$108,151.47 (a further discount of AU$4,848.53 had been given). Her evidence was her colleagues helped fundraise for the surgery.

1158 It was readily apparent that Ms Çalan was a very vulnerable patient. Like other patients, she was determined to walk again, having experienced an incredibly traumatic and life-changing incident. Dr Al Muderis gave evidence that he was aware Ms Çalan had severe PTSD, suffered panic attacks, had a significant pain issue, and was dependent on opioids. He was aware pain was a significant concern to her.

1159 In that context, Ms Çalan had paid for her surgery and travelled to Australia without Dr Al Muderis having explained the risks and complications of the surgery to her. There is also no evidence that Dr Al Muderis told her that her pain may be worse after the surgery. The respondents submitted that in circumstances where Ms Çalan completed a pain survey, disclosing that she suffered routinely from excruciating pain, and where Dr Al Muderis otherwise knew pain was a significant concern to her, Dr Al Muderis ought to have ensured that she was fully aware that she could end up in more pain after the operation than before. They submitted the evidence showed he failed to do so.

1160 The applicant referred to two aspects of the evidence to support a submission that Ms Çalan was aware of the risks and complications of the surgery before she paid for the surgery.

1161 First, he relied on Ms Çalan’s evidence of a conversation with Dr Rosenblatt. She described him as telling her there was an infection risk, but that it could be controlled. She also said she did her own research and understood there was an infection risk.

1162 Plainly, this does not satisfy any obligation on Dr Al Muderis’ part to ensure that a patient is fully informed of the risks and complications.

1163 The applicant also submitted that Ms Çalan sent “a list of about 20 questions concerning risks and complications to Dr Rosenblatt” and the Court should infer he would have answered them. However, Ms Çalan’s evidence was that the questions “included” questions about risks and complications, not that all twenty questions were of that kind. There is no evidence of a written reply to her questions. Ms Çalan’s evidence was that she raised the issue of infection with Dr Rosenblatt, and he said there was such a risk, but that that would be dealt with without it being a problem. Beyond being told she would be left with an open wound following surgery, Ms Çalan does not refer to any other matters being raised. She was specifically asked in cross-examination about being told the operation might not work, which she denied, explaining that she was told the operation would be good for her. She was not cross-examined to suggest Dr Rosenblatt or Dr Al Muderis explained other specific risks and complications to her on this occasion. Dr Al Muderis’ obligations are not satisfied in those circumstances. There is no evidence to suggest he was aware of what Dr Rosenblatt said on this topic.

1164 Second, the applicant referred to his evidence that he had a telephone call with Ms Çalan. It is unclear when this is said to have occurred. Ms Çalan was clear that she only ever spoke to Dr Rosenblatt before coming to Australia. The applicant submitted that his and her accounts are not irreconcilable, as Ms Çalan might not have realised that Dr Al Muderis was also on the phone during a call with Dr Rosenblatt. However, Dr Al Muderis did not suggest in evidence that the calls he was referring to were those where Dr Rosenblatt spoke with Ms Çalan, rather his evidence was that he personally made calls to Ms Çalan. Nor is it suggested (and there is no evidence) that he discussed risks and complications on such a call. There is no documentary evidence supporting the applicant’s evidence. Given the circumstances, if there had been such a conversation, it would be expected to have been documented. I also accept the respondents’ submission that the evidence failed to show Dr Al Muderis ensured that Ms Çalan was fully aware that she could end up in more pain after the operation than before.

1165 As referred to above, the 16 August 2017 consultation report (relating to the presentation of Ms Çalan’s case to Dr Al Muderis’ team) also does not contain any references to the risks and complications of surgery. The applicant’s evidence about the report was disingenuous and was said to overcome what is an obvious omission from the report.

In Australia

1166 Ms Çalan arrived in Australia on 4 October 2017 and met with Dr Al Muderis on 5 October 2017. Dr Al Muderis accepted that the first consultation with her in person was very important. He accepted he needed to satisfy himself that Ms Çalan understood the risks and complications of the surgery and that she gave informed consent for the surgery. He had not organised for a certified interpreter to be present and instead relied on a friend of Ms Çalan’s to translate.

1167 The 5 October 2017 consultation report has scant detail. There is no reference to any risks or complications, or even any discussion on this topic. I have referred elsewhere to the applicant’s evidence as to consultation reports being a summary for his use (see Consultation reports, Part 6, Section 1). I note Ms Çalan was the first patient Dr Al Muderis was cross-examined on. Of the consultation reports in evidence relating to first consultations, the content in this report is remarkably brief. The report does not refer to anyone else being present. The report does not provide any recommendation or advice regarding Ms Çalan’s suitability for surgery but rather proceeds on the basis that the surgery will occur. That reflected the reality of the surgery having been booked and paid for before she arrived in Australia.

1168 Ms Çalan’s evidence was that the consultation was short. She explained that while Dr Al Muderis mentioned the risk of infection and bleeding, he said words to the effect that these were things that could be kept under control. Dr Al Muderis accepted these are words he might have said. Ms Çalan assumed, without recalling, that he explained the procedure to her.

1169 This consultation was held before Dr Basten’s assessment of Ms Çalan on 6 October 2017, from which his report provided recommendations regarding communicating with Ms Çalan, including in relation to her concern about pain. There is no evidence of what, if anything, was done with these recommendations.

1170 Ms Çalan also gave evidence that Dr Al Muderis did not tell her that he designed the implants and that they could degrade. He denied not telling her that the implants were his proprietary implants. I note the financial disclosure form is in English and there is no evidence it was translated for her. The applicant’s reliance on her signing this form does not assist.

1171 On 11 October 2017, Ms Çalan underwent bilateral transfemoral single-stage osseointegration.

1172 The operation report does contain a pro forma statement of consent. This is a discussion that occurs in the anaesthetic bay. Dr Al Muderis said this report is normally completed by a fellow. He said that some of the risks referred to are general, and some are specific to the actual part of the body that is to be operated on. He explained that the matters in the consent paragraph of the report are a summary of the important, material points covered, although it extends beyond that.

1173 This operation report refers to general risks of surgery, with no mention of any risks specific to osseointegration, for example, recurrent infections, a need for further surgery, or that pain after surgery may be worse than before. One would have expected that if specific risks were discussed, they would be material and recorded. In any event, that this discussion occurred immediately prior to surgery renders reference to any of those specific matters insufficient. As discussed elsewhere, by this time, patients – particularly overseas patients – have committed to the surgery.

1174 As previously explained, Ms Çalan relied on her friends to translate what doctors said to her in person. Dr Al Muderis did not organise for a certified translator to be present in the consultations, including, significantly, those consultations conducted before surgery where obtaining informed consent was required. Dr Geffen gave evidence that he “would have expected an independent certified translator to be present for all consultations and in particular for consent”, and that he did not consider assistance from Ms Çalan’s friend to be adequate. Given the importance of informed consent, Dr Geffen’s evidence of the use of a certified translator should hardly be controversial.

1175 As evident from the discussion above, the applicant’s submission that the Court should reject any suggestion that Dr Al Muderis did not adequately explain the risks and complications, is in part based on the acts of others. For example, it relies on Ms Çalan accepting in evidence that she understood before surgery that the procedure was risky. However, that evidence was not based on anything Dr Al Muderis said to her; she explained she came to understand so much through her own research. Further, her evidence of her understanding of the specific risks was limited to infection.

1176 I am satisfied that Dr Al Muderis did not adequately explain to Ms Çalan the risks and complications of this surgery before she had paid for it, or before the surgery occurred. It follows that Dr Al Muderis could not have obtained her informed consent.

Post surgery

1177 After surgery Ms Çalan had ongoing issues, including with pain, infection, and granulation tissue. On 17 October 2017, she was discharged from Macquarie University Hospital to the Meriton. On 29 October 2017, she was transferred to The Hills for rehabilitation, where she stayed until 26 November 2017.

1178 Her progress at The Hills was slow, and complicated by a stump infection. On one occasion, she was admitted to Norwest Private Hospital under the surgical team for management of her stump infection, which was treated with intravenous antibiotics (as described in her medical discharge from The Hills dated 25 November 2017). Her nursing discharge summary from The Hills dated 26 November 2017 states, inter alia, that she was on antibiotics at that date due to infection, and that she had a high temperature.

1179 The date of her admission to Norwest Private Hospital is unclear. A consultation report dated 13 November 2017, dictated by Dr Rosenblatt on Dr Al Muderis’ behalf, notes that Ms Çalan was on antibiotics at that time, although it records that they should be discontinued due to the absence of any evidence of infection. I note the report also states that Dr Al Muderis will be “coming by the Hills” on 16 November 2017, “to inspect the stomas at that time”. This is rather unusual given his explanations in evidence as to why he had not visited other patients of his at The Hills: see [1636]. This consultation appears to be before her admission to Norwest Private Hospital. It can be inferred that the antibiotics that Ms Çalan was taking had been prescribed by a doctor at The Hills and that it was considered necessary.

1180 It was put to Ms Çalan in cross-examination that she was mistaken about the reason for her going to Norwest Private Hospital from The Hills being because of infection or fever, which she denied. As she said, she was given antibiotics. This continued when she went back to The Hills. Her evidence is supported by contemporaneous records.

1181 Despite documents from The Hills recording her medical position at the time of discharge, and during her stay (including her condition at the time of her admission to Norwest Private Hospital), in cross-examination Dr Al Muderis was reluctant to accept that Ms Çalan was suffering from an infection at that time, because he had not seen the temperature chart and he had not made the diagnosis. This reflects a general inconsistency in the applicant’s approach (as reflected in his evidence), where he submitted that contemporaneous records should be relied on but nevertheless challenges the veracity or accuracy of the content of such records where they do not assist him.

1182 A further consultation report dated 21 November 2017 (again dictated by Dr Rosenblatt on Dr Al Muderis’ behalf) notes that Ms Çalan “is still complaining of a considerable amount of pain in both stumps” and had a significant amount of granulation tissue. This appears to be after her admission to Norwest Private Hospital. It recorded:

the patient recently was admitted to the Emergency Department with acute exacerbation of her pain, elevated blood pressure and elevated temperature all of which appeared to be due to a very hyper anxiety state … [t]he patient was started on Cefazolin [an antibiotic] at that time … and then she returned to The Hills Rebab Centre.

1183 The report concluded that Dr Al Muderis considered that:

a considerable amount of her pain and discomfort is psychological and that she simply needs to get out of The Hills as often as possible and to get out and about and see some of Australia.

1184 Dr Al Muderis placed Ms Çalan on antibiotics before she returned to The Hills. Again, this is consistent with Ms Çalan’s evidence.

1185 The respondents submitted the conclusion in the report that her pain and discomfort is psychological sits uneasily with the repeated insistence by Dr Al Muderis during cross-examination that he deals only with orthopaedic issues and is not qualified to deal with pain or psychological issues. He usually gave such an explanation when challenged in cross-examination for failing to act in response to an issue of that nature being raised by a patient.

1186 There is no evidence of any psychologist at this consultation, or being consulted before this conclusion was expressed and plan implemented. There is no evidence that Dr Al Muderis took any steps for a psychologist to be involved. As referred to above, Dr Basten had opined before her surgery (but after Dr Al Muderis’ pre-operative consultation), that Ms Çalan had concerns about pain. There is no evidence that this was addressed in the manner he suggested.

1187 On 26 November 2017, Ms Çalan was discharged from The Hills. She gave evidence of a conversation with Dr Rosenblatt expressing her desire to stay in Australia longer to continue treatment because she was experiencing ongoing pain and other symptoms. She also had a conversation of a similar nature with Dr Al Muderis. Dr Al Muderis said no, she needed to “get back to [her] normal life” and that he would monitor her in Turkey, saying “I’ll arrange a doctor in Turkey and make sure they look after you while you’re in Turkey.” Ms Çalan told Dr Al Muderis there were no implant doctors in Turkey. When she told him she wanted to stay to seek proper medical treatment, he said he feared she would seek asylum and that that would have negative implications for him.

1188 Dr Al Muderis gave evidence that he told her she needed to go back home and that he did not know how he could help her stay in Australia. He did not recall saying to Ms Çalan that he would arrange a doctor in Turkey to look after her, or her saying that the reason she didn’t want to go back was because there were no implant doctors in Turkey. He denied saying to her that he was worried she would seek asylum, which would have negative implications for him.

1189 Dr Al Muderis confirmed in evidence that he told her he would liaise with doctors in Turkey if need be, stating:

she was given the … standard post-operative protocol rehabilitation, and she was recommended to go back to Turkey, and … if she need any help … we would refer her to a local surgeon or local clinician in her area, wherever she is around the world.

1190 Ms Çalan’s evidence was that Dr Al Muderis did not tell her who that doctor would be. He said she was fine to fly. She received a little case with spare parts. She was not referred to a prosthetist in Turkey. That evidence was not challenged.

Return to Turkey

1191 In late December 2017, Ms Çalan returned to Turkey having undergone highly invasive surgery and experiencing ongoing post-operative issues. That Ms Çalan did so without Dr Al Muderis making any arrangements with a local doctor to treat her, and without any information about or names of doctors who had the knowledge and ability to do so, is uncontentious. Dr Al Muderis did not know of any doctor in Turkey who could treat Ms Çalan. There were no post-operative care plans in place.

1192 For Dr Al Muderis to perform the surgery in those circumstances, without satisfying himself that she could be appropriately cared for when she returned to her home country, is self-evidently inappropriate and does not constitute appropriate care. To send Ms Çalan home to face those circumstances is a failure of the same kind.

1193 As the respondents submitted, this was certainly not “best practice” post-operative care envisaged by Dr Al Muderis’ own witness, Spanish orthopaedic surgeon, Dr Pablo Corona. Dr Corona agreed that if a patient travels from another country for surgery, the surgeon should not perform the surgery unless satisfied there are medical practitioners in the patient’s home country who can look after the patient when they return home.

1194 Ms Çalan gave evidence that after her return to Turkey, she continued to experience problems and that Dr Al Muderis was largely unresponsive to her requests for help. Her evidence was that she has suffered ongoing issues with her implants in Turkey and has repeatedly sought medical assistance in relation to her implants, both in and outside of Turkey.

1195 The applicant submitted that after Ms Çalan returned to Turkey, she was under the care of her local treating surgeons, and that there is no cogent evidence that she had any serious health problems which required Dr Al Muderis’ personal attention. As a starting point, this submission ignores that on his evidence there was no doctor in Turkey (as far as he knew) with any experience with osseointegration patients who could treat her.

1196 The applicant submitted that an important issue in Ms Çalan’s case is what the Court should make of the many social media posts in evidence in which she frequently documented herself being active, mobilising on her prosthetic legs, and appearing happy. He focused much of his evidence and submissions in relation to Ms Çalan on social media posts which he says “permits the inference that … even if she was not always doing well, she was regularly and consistently doing well” and that the evidence “also gains cogency from the degree to which it is at odds with the very negative way in which Ms Çalan described her condition in her evidence in chief”. The applicant relied on the volume of the photographs and videos depicting her life. He submitted that:

[c]onsidering her contemporaneous social media publications as a whole, it is impossible not to conclude that Ms Calan was able to lead a normal and fulfilling life to a significant extent, even if she may also have had some problems along the way.

1197 I return to address this below.

1198 The applicant submitted that the Court should reject the allegation that Dr Al Muderis was unresponsive to Ms Çalan’s messages and requests in circumstances where it is said Ms Çalan’s own evidence corroborated Dr Al Muderis’ evidence that he discussed her care with her friend Amy by phone on multiple occasions. It was submitted that, given that evidence, there is no reason not to accept Dr Al Muderis’ and Ms Roberts’s evidence that messages were responded to. The evidence establishes that there were phone calls between Amy and Dr Al Muderis (or Ms Roberts). However, it cannot be extrapolated from that, as the applicant has done, that the applicant was always responsive to the messages, or that his evidence that he rang must be accepted. Ms Çalan’s answers in cross-examination, read in context, do not support that proposition. The submission proceeds on a misunderstanding of her evidence. Moreover, the submission also equates responding or speaking to Amy with being responsive to the request.

1199 Ms Çalan also gave evidence of not receiving responses, and of receiving responses considerably later than the request to Dr Al Muderis for help (including on occasions where his responses were so late that, in the meantime, Ms Çalan had the surgery that was the subject of the query). Although Amy and Dr Al Muderis may have had many conversations, Ms Çalan wanted Dr Al Muderis to talk to her doctors, and her evidence was that “there was no … proper discussion with the actual doctor”. Ms Çalan’s evidence is supported by the contemporaneous documentation.

1200 It is readily apparent from the content of some of the messages Ms Çalan sent, or were sent on her behalf, to Dr Al Muderis and Ms Roberts, that they were not responded to (or not for a considerable time in circumstances where the request on its face, had a degree of urgency). There were intermittent responses to some messages. Dr Al Muderis’ evidence that he would have called Amy on those occasions is often inconsistent with the content of those messages.

1201 Further, there are some emails Ms Çalan wrote (apparently with the assistance of a translator or translation software) which reflect on her state of mind at the time of writing. That Dr Al Muderis did not accept they did so is irreconcilable with their content.

1202 Take one such email, sent in April 2018:

Dear Dr. Solon and Dr. Munjid,

As you know, I have been in Turkey for over three months. From the minute I left Australia, I have caught an infection two times, and have been undergoing treatment at the hospital, often having to stay as an inpatient, for a long time. Since my pain is quite severe, I have been using narcotic painkillers, and my wounds have not yet closed. Before my return, I was fairly concerned about continuing my treatment in Turkey because no one here is familiar with this kind of treatment. However, you assured me by saying that you would always remain in contact with my doctor and the situation would be under your control. And believing you, I returned.

Unfortunately, you have not provided this contact, and have left me alone without recommending medication, talking to my doctor, or informing us whether this level of pain is normal or not. Moreover, even though we have informed Dr. Munjid that in case of the infection passing to the bone the prosthesis will be taken out, he has still not made contact with us! I’m very saddened by this situation. I have spoken to my other friends who have undergone the surgery and they said they have had no problems in communicating with Dr. Munjid. So I wonder why in my case, you are not staying in contact? Despite having informed Dr. Mujid of my infection and my pain level, why has he still not replied? I am not asking for too much; I only want, as a patient, to receive information and recommendations from my doctor. I have had, and am still having, many problems! The main ones are:

1. For my pain, and for the situation in general, Dr. Sinan Adiyaman needs to talk to you.

2. Since it was an Ottobock leg implant, they do not adjust the prosthesis; they say this treatment is not approved, and will not even tighten a screw. Since my knee joints have not been adjusted, I cannot walk or comfortably move around. I tried to talk with Stevan but could not get ahold of him either. Can you please speak with Ottobock in order for them to adjust my prosthesis? If these adjustments aren’t done, I will not be able to use my prosthesis.

I wish you a good day. Please do not leave me alone anymore.

Sincerely,

Lisa Calan

1203 This reflects Ms Çalan’s state of mind at the time, and her understanding of her circumstances. It also includes descriptions of her direct experiences of what had occurred (e.g. hospitalisations, experiences with pain etc). It is also a relevantly contemporaneous document consistent with her evidence as to the concerns she held before leaving Australia that she expressed to Dr Al Muderis. It is consistent with evidence of her understanding of what was to occur on her return to Turkey if assistance was needed. She plainly felt abandoned at that time. It can readily be accepted that she faced difficulties, which are not surprising given the circumstances of her return to Turkey.

1204 The applicant’s evidence in cross-examination on this email was evasive and argumentative. The questions asked were clear and direct. In relation to the inquiry about pain and whether he responded, the applicant said:

I clearly explained to her on several occasions … that I am not a pain specialist. I’m here to look after her osseointegration surgery. I repeatedly mentioned it to her that I don’t manage pain. We have a pain specialist that managed pain. I repeatedly mentioned it to Lisa herself, to Amy, that I’m not a pain specialist … I continue to say it and I say it to every patient, “I’m not a pain specialist. I am just a carpenter. I do surgery. I don’t understand pain management. I don’t prescribe pain medications.”

1205 There is no documentary evidence of any advice given in relation to pain. There is no evidence that Dr Al Muderis responded to this plea, including by informing her of the fact he is not a pain specialist. In response to the proposition that he did not ever tell Ms Çalan whether the level of pain she was experiencing was normal, Dr Al Muderis said that “I don’t comment on pain unless it’s related to an injury that occurs or a complication of osseointegration surgery.” He said he triages the messages he receives from patients, and if the pain that they suffer from is related to a mechanical problem in relation to osseointegration that can be reversed by a surgical intervention or a surgical advice, he responds immediately.

1206 That he said he is not a pain specialist is not a basis for a failure to respond to this plea for help.

1207 That answer also does not address that the email complains about the failure to respond in relation to her infections. In his cross-examination, Dr Al Muderis said that Ms Çalan’s reference to infections in her messages was “her feeling”. He also gave evidence that he does not accept a patient telling him they have been diagnosed with an infection at face value. Rather, he said that “if a clinician make[s] the assessment about infection and conveyed it to me and I respond to them immediately”. However, the email also refers to the frustration towards Dr Al Muderis for not talking to her doctors, with Ms Çalan emphasising her doctor, “needs” to speak with them about her pain and situation in general.

1208 The other issue Ms Çalan identified in the email was Ottobock’s refusal to adjust the prosthesis, which is a practical problem. Again, there appears to be no response from Dr Al Muderis. I note that there is no evidence that, having given a patient his telephone number, he told them that he will triage the message sent, or that he will only respond if he considers it appropriate. The plain expectation is that a message (particularly a request for help) would be responded to.

1209 The applicant’s submission in relation to this email is that Dr Rosenblatt replied to it the following day, pointing out that Ms Çalan had failed to follow-up on his recommendations for qualified surgeons in Turkey she could speak to, and that Dr Rosenblatt’s email also attached written information about stoma hygiene and routine daily care. I note that Dr Rosenblatt’s reply does not state that he, or Dr Al Muderis, are not pain specialists, and therefore cannot answer her request. Rather, Dr Rosenblatt said he had tried to explain that the surgery may or may not get rid of neuropathic pain. That is not an answer to her question. Nor did Dr Rosenblatt respond to her request that her doctor needed to speak to them.

1210 Dr Rosenblatt did provide names of four doctors in Ankara who are “familiar with osseointegration” in response to Ms Çalan’s April 2018 email. Those four doctors were included in a list of eight doctors Dr Rosenblatt provided to her in December 2017, who he explained had “expressed an interest in osseointegration”. I note that in cross-examination Dr Al Muderis said he did not know anyone on the list of the eight doctors.

1211 In a 23 January 2018 email, Dr Rosenblatt had also provided the names of the four doctors, but said he knew nothing about them. In that email, he suggested Ms Çalan could travel to see surgeons in Jordan or Israel. On 25 January 2018, Ms Çalan replied, outlining the issues she was having:

As I [tried] to inform you before, when I arrived [in] Istanbul, the first reactions of doctors to my request for medical treatment of open wounds were, unfortunately, unclear and dismissive. Their main argument is that they haven’t experienced such a surgery before so they can not take the risk of intervening in my healing process.

1212 Ms Çalan also explained in the email that she did not have financial resources to travel to another country for treatment. The email concluded, “Dear Solon, I am begging you to not leave me alone at this point since I truly fear of [losing] my prosthesis because of false treatments and unnecessary surgeons.” The reaction she described of doctors in Istanbul is consistent with Dr Al Muderis’ evidence as to the technology being in its infancy. It is unsurprising.

1213 Ms Çalan’s evidence was she started to see the doctors on Dr Rosenblatt’s list, but they could not even prescribe medication because they knew nothing about the procedure. Properly considered, the evidence does not support the applicant’s submission that Ms Çalan only tried to contact one doctor.

1214 In this context, it is appropriate to refer to later occasions where Ms Çalan responded to requests from Dr Al Muderis’ office.

1215 The first was in July 2018, when Ms Michelle Nairne reached out to Ms Çalan. She explained that Dr Al Muderis’ ghostwriter wanted to mention her in his upcoming book, attaching a draft of a section featuring Ms Çalan. Ms Çalan responded in November 2018:

A few months ago you sent me an email requesting to include me in an upcoming book. Owing to Dr. Munjed’s ongoing refusal to engage with me or my doctors in a serious manner after my osseointegration surgery, I wanted to inform you that I do not give permission for my name or my story to appear in his book.

1216 On a separate occasion in August 2019, Dr Al Muderis’ office requested Ms Çalan complete a survey. She responded:

My experience with you was awful. I still have not been able to recover, because every time I had complications your team either ignored my messages, or dismissed my concerns. After several months of trying (and failing) to get your team to take my concerns seriously, I had to go to Germany for another surgery. This surgery did not go as well as it could have. It would have been much better if the doctor on your team who did the original surgery (Dr. Munjed) had been available to treat me in Australia, which was my first preference. I still deal with a lot of pain every day.

Considering all the trouble I have had with your team, I am not going to take time out of my day to fill out this survey. However, I will say that I would never recommend your team to anyone seeking osseointegration surgery.

1217 In March 2021, Ms Çalan received a request to complete another survey, to which she responded:

First of all, I want to thank you for performing the surgery which has enabled me to walk again, which has been a wonderful thing. However, after the surgery was completed, I did not receive adequate aftercare, nor communication from the team of doctors. Because of this, I experienced several complications which made the last three years very difficult! My friends and I sent countless emails and messages to Dr. Munjed, and even spoke with him on the phone, but on the rare occasions when we were able to get in touch with him, he did not take the complications I was experiencing seriously. I needed surgery to resolve those complications but since Dr. Munjed ignored my requests for help, I had to go from country to country seeking care. First I went to the Netherlands, then Germany, where I finally underwent surgery in Hanover. However, I still have problems with my legs and have not been able to solve them. Every doctor I have seen has told me that the original doctors who did my surgery need to fix it. I feel hopeless, and this hopelessness has greatly affected my mental health, despite being able to walk again. All around the world, if a doctor performs surgery on you, they are your doctor for the rest of your life, but unfortunately in my case, the necessary level of communication was not maintained. What I have gone through has led me to question medicine, doctors, and the hippocratic oath. One of the worst aspects of this situation is that with no one to turn to, I don’t even know what I will do if one of my implants is damaged. So that’s your answer - fill out the form yourself.

1218 To this email Ms Çalan attached earlier emails she had sent, as examples of the pleas for help she had made over the years. Those emails were consistent with the content of this email.

1219 These more recent emails also reflect Ms Çalan’s state of mind at the time of writing. A consistent picture is portrayed from the time she left Australia. The emails cohere with her evidence of her contact with Dr Al Muderis in that period. They are also written well before the publications and are contemporaneous with the events.

1220 The applicant does not refer to these emails in his closing submissions. They are inconsistent with the applicant’s submissions as to Ms Çalan’s life.

1221 The fact that Dr Al Muderis was not always responsive is also supported by the fact that he proffered several explanations for failing to respond to the messages for help. Regardless of whether these explanations are accepted, it is the fact of the explanations that recognises there were no responses on those occasions. One example, referred to above, is Dr Al Muderis’ evidence that he triages messages from patients, so that he only responded when he considered it was appropriate for him to do so. He explained that, in accordance with this system, he did not respond to a message relating to Ms Çalan’s pain because he was not a pain specialist. However, as noted above, after giving his telephone number to patients, there is no evidence that he told them he may not respond if contacted. As previously noted, the message he gives to his patients, and the impression they were plainly under, was that he would respond in any event.

1222 At other times, Dr Al Muderis would point to his limited expertise to explain a failure to respond to correspondence. For example, on 7 June 2018, Amy asked Dr Al Muderis via WhatsApp, “would you be able to send ottobock an email confirming it is safe for them to adjust Lisa’s prothesis?” When asked in cross-examination whether he did that, Dr Al Muderis responded that he is “not a prosthetist”. There was no apparent response to Amy’s message. That explanation given also suggests so much.

1223 The applicant also submitted as an explanation that not all the questions or requests Ms Çalan made, or were made on her behalf, were reasonable. In relation to several of Ms Çalan’s messages to Dr Al Muderis in May 2018 requesting that he contact her doctor, and which were prima facie not responded to, Dr Al Muderis said Ms Çalan “was in hospital. It’s inappropriate for me to intervene with her care when she’s under the care of a different clinician”. He said he had “a duty of care toward the patient and I have a duty of care toward colleagues”.

1224 If that was the position, it would have been expected to have been explained to Ms Çalan. There is no evidence that was explained to her. Nor is there any apparent reason one colleague could not talk to another, particularly in circumstances where it is evident that the surgery that Ms Çalan had undergone was not well known (and on his evidence, in its infancy which confuses a lot of clinicians). Dr Al Muderis instead opted not respond to Ms Çalan’s pleas for help. Again, the message he gave to Ms Çalan before leaving Australia was that he would contact her doctors.

1225 In any event, it is also evident on the face of the messages between Amy and Dr Al Muderis between May and June 2018 in evidence, that Amy had understood that Ms Çalan’s doctor, Dr Adiyaman, had sent emails to Dr Al Muderis trying to communicate with him. What can readily be inferred from the face of those messages is that Dr Al Muderis had not spoken to Dr Adiyaman during that time. Dr Al Muderis’ evidence that he had spoken to him is inconsistent with those messages.

1226 It is unnecessary to recite all the messages sent. Having considered all the evidence and accepting that although Dr Al Muderis did respond to some messages and did speak to Amy, there were many occasions where the response was delayed or non-existent. I accept that Ms Çalan was unhappy with the lack of response, and that given what I accept she was told by Dr Al Muderis before she left Australia, there was a basis for that unhappiness.

1227 Returning to the topic of Ms Çalan’s social media. The applicant relies on social media posts, photographs and videos, and on trips she has taken over the years (some documented on social media) to submit that this is inconsistent with her messages for help and the stated medical issues. This submission was that “Ms Çalan was able to lead a normal and fulfilling life to a significant extent, even if she may also have had some problems along the way”.

1228 I have considered this evidence along with all the other relevant evidence. I do not accept that submission as to inconsistency. I have addressed elsewhere the simplistic nature of this submission. The submission does not account for Ms Çalan’s evidence of what occurred, and the repeated messages she sent, and those sent on her behalf, to Dr Al Muderis and Ms Roberts seeking help. The social media relied on is not inconsistent with the contemporaneous messages which detail the help she was seeking and the reason for it. Further, simply because Ms Çalan is out and about and being active when she otherwise claims to be experiencing post-operative complications does not lead to the inference that at that time, she was not suffering in the way described in those messages. The evidence of her apparent wellbeing is not inconsistent with her evidence as to pain. When asked about a video of her dancing, Ms Çalan explained:

I like to dance, and when I feel okay, I try to take advantage of that feeling and do things that make me enjoy things. … I’ve spent … so much time in hospitals, and what you’re focusing on is … what’s posted in social media.

1229 Further, Ms Çalan’s evidence of looking for doctors to help her, to being in hospital often, to being concerned about the treatment she was getting, to reaching out to Dr Al Muderis for help, can hardly be described as a normal life. Yet Ms Çalan described doing those things, and her evidence is supported by contemporaneous messages (some of which are referred to below). I accept her evidence.

1230 Moreover, in this case, this submission also fails to address the matter relevant to the resolution of the issues before this Court. The question is not whether Ms Çalan is mobile, or whether she can go about her life, or undertake activities. Nor is the question whether Ms Çalan can undertake activities now which she could not do before the surgery. Rather, in this instance, it is whether it has been established that Dr Al Muderis failed to provide after care with the level of care, skill and attention that an ordinary person in the position of his patients would have expected. The applicant nevertheless appears to address the matter indirectly: if it is demonstrated that Ms Çalan’s post-operative health was sufficiently good, such that she did not require post-operative care to the extent asserted, then Dr Al Muderis’ obligations would not extend so far (and there would be no concomitant failure). The premise of that approach, however, is unfounded.

1231 It is appropriate to address aspects of the applicant’s submission through several examples.

1232 For example, the applicant refers to several social media posts between June and August 2018 and submitted they are inconsistent with her assertions as to her medical condition. He submitted these show that she is active and being social. However, the evidence also contains messages from May 2018 with images of her stump, its condition and that she had stiches in it, with repeated requests for help. In large part, there is no reply to the messages. Those events are referred to above. Although the applicant complains there are no clinical records from the hospital, the inference from the messages and photographs is that she is in hospital, and what is described is consistent with the photographs.

1233 In August 2018, there is another series of messages where, after a request for help was made, Ms Roberts asked Ms Çalan to send scans, which she did. This occurred on 21 August 2018, and thereafter there were repeated pleas for a response to the scans, including from Amy:

21 August 2018

Amy: Hi Claudia, I hope this message finds you well. Lisa’s doctors say that the reason she has so much pain/swelling is due to an abcess in her leg and recommended surgery. Lisa was planning on coming to Australia for treatment via a friend’s invitation, however, they were unable to do so. She would like to know if Dr. Munjid can issue her a one month medical visa? We tried messaging him but haven’t heard back.

Ms Roberts: Hi Amy

Munjed would like to see Lisa’s scans to confirm that there is an abscess. Can you please send them to us?

Amy: Yes, I will have Lisa send them ASAP. Thanks for getting back to me so quickly.

24 August 2018

Amy: Hi Claudia, I have sent the scans to Dr. Munjed’s email address. Please let me know if there are any problems viewing them. Thanks.

27 August 2018

Amy: Hi Claudia, Did you receive the email with the scans?

29 August 2018

Amy: Hi Claudia, Lisa just wanted to know if there are any updates regarding the scans. Her pain is getting worse and the doctors here are unable to treat her.

1234 Ms Çalan similarly pleaded for a response via email on 29 August 2018:

Hi Dr. Munjed, Claudia

Did you get a chance to look at the scans we sent last week? If so, do you think I can come to Australia for treatment? My pain has become intolerable, and I am unable to have any semblance of a normal life. If anything, my situation is worse than before the surgery. The doctors here say that they do not have enough resources or experience to help me. I will be returning to Diyarbakir soon, as there is no reason for me to stay in Ankara without treatment. However, there are no treatment options in Diyarbakir either, as I’m sure you are aware. For these reasons, I would like to know if you would be able to assist me in getting a visa for Australia to continue my treatment there. I would greatly appreciate if you could inform me of your decision as soon as possible, regardless of whether it is positive or negative, so that I can at least know what my options are.

Best wishes

Lisa

1235 And again later that day: “Very very pain please help me”. Dr Al Muderis did not recall responding to this email, and there is no evidence of any response.

1236 I note that, as the respondents submitted, Dr Al Muderis disagreed that Ms Çalan writing “[v]ery very pain please help me” was a cry for help. He explained that was so “because she knows I’m not the pain specialist”. He disagreed that “the proper human response on receiving a message like that is to respond to it in a sensitive and timely manner”. The respondents submitted this was callous. That is an apt description. It also illustrates his approach in giving evidence where he would not admit anything he perceived might reflect adversely on him (and justifying his position).

1237 Another example relates to the submission as to events in 2019, a time after Ms Çalan saw Dr Oscar van Waes.

1238 Ms Çalan was asked about seeing Dr van Waes in the Netherlands. She consulted him on 7 January 2019. It is correct, as the applicant submitted, that after seeing Dr van Waes, he emailed Dr Al Muderis for his advice as to what to do:

She complaints of pain of both left and right stoma. Left is stuck on implant; no signs of infection. Told her to leave it / treat expectant. Right had a surplus which is painful; is it an option to excise stoma; and take old scar to remove excess subcutaneous fat?

1239 It appears Dr van Waes attached several images to his email. Dr Al Muderis replied, “[y]ou could remove the excess tissue but my fear is that this will not improve her symptoms as they were significantly disproportionate to the physical finding.” I note he also told Dr van Waes that Ms Çalan: “[t]ook [a] very long time to mobilise and continue[s] to struggle with her condition”; he “failed to find a physical problem to address”; she had had “multiple falls but to date no fracture”; “[s]he has been led to belief that she has chronic infection from n [sic] the bone from what I was told”; she “[h]as seen few surgeons in Turkey who kept giving her antibiotics despite my objections”; and those surgeons “[a]lso offered her removal of implants”. It appears that Dr Al Muderis had been provided with some information about Ms Çalan. It also reflects that he was aware that there were issues with her treatment in Turkey, as she (via Amy) had been complaining about it.

1240 Dr van Waes responded that he concurred with Dr Al Muderis’ opinion, and explained that there were no signs of infection, and that he would advise Ms Çalan to wait and see, as she can always email him if “something alters for the worse”. In his initial email, he noted that she complained of pain in both the left and right stoma. The report he wrote thereafter, dated 8 February 2019, is consistent with that advice of Dr Al Muderis.

1241 This is the only documentary evidence of Dr Al Muderis communicating with a doctor (outside of his team) who consulted with Ms Çalan.

1242 The applicant’s submission that Dr van Waes’ report wholly contradicts Ms Çalan’s evidence of her problems is not correct. The report reflects that there was no sign of infection at that time. In Dr van Waes’ email, he was considering an excision and the removal of excess tissue. It cannot be said that there were no issues. Further, the history recorded by Dr van Waes accords with Ms Çalan’s description, and Dr Al Muderis advised Dr van Waes (it is unclear on what basis) that her issues are disproportionate to the physical findings. I note that Ms Çalan gave evidence she did see doctors in the Netherlands, who said Dr Al Muderis had got in touch with them and told them he had everything under control, and that they did not need to worry. She said she felt that Dr Al Muderis was trying to dismiss her, and that she had difficulty trying to convince the doctors to help her.

1243 Again, the applicant submitted that consistent with the advice given by Dr van Waes as to her medical condition, Ms Çalan’s contemporaneous social media posts spanning 8 March to 7 August 2019 continued to depict her regularly being active and socialising. I have considered these, and later images referred to by the applicant. In my view they are not inconsistent with Ms Çalan’s evidence of her condition and the email sent to Dr Al Muderis’ clinic in August 2019 refusing to participate in the survey, referred to above at [1216].

1244 I am satisfied that Dr Al Muderis failed to adequately assess Ms Çalan before informing her that she was a suitable candidate for osseointegration surgery and failed to adequately advise her of the risks and complications (and certainly not before the surgery was booked and paid for). In that context, any consent given was not properly informed. Further, he sent Ms Çalan back to Turkey without having post-operative care in place and the aftercare he provided was inadequate. He failed to conduct himself with the level of care, skill and attention that an ordinary person in the position of his patients would have expected.

Observations about the international patients

1245 Before considering further the domestic patients, it is appropriate to make some general observations that arise from the evidence of the international patients. These patients are relied on by the respondents (together with other evidence) in relation to proving the substantial truth of various imputations, including those relating to, inter alia, the prioritisation of money, fame, reputation and numbers, the downplaying of the risks and complications, and aftercare. This evidence is also relevant to other factual issues, for example, Dr Al Muderis’ evidence (and his witnesses’ evidence) of his standard practice. The evidence is revealing.

1246 In relation to the American patients, the evidence reflects that business was an imperative for Dr Al Muderis’ practice. He travelled to the United States not only to speak at conferences and lectures, but to promote himself and his osseointegration system to prospective patients. That is, to attract patients to Australia to undergo osseointegration surgery with him. As Ms Roberts accepted in cross-examination, Dr Al Muderis would travel to the United States for conferences and meet with potential (and existing) osseointegration patients. He would meet those patients in a hotel room, hotel conference room or hotel lobby. Patients were invited to attend his presentations.

1247 He had representatives in the United States, including Dr Rosenblatt and Mr Hernandez until at least mid-2018 (and, more recently, Ms Nikki Grace-Strader). As explained above, Mr Hernandez had an agreement with Dr Al Muderis (through his company, Osseointegration International) to promote him and his company. In practical terms, he was paid a commission for each patient he recruited to have surgery with Dr Al Muderis (as they would purchase Dr Al Muderis’ implant for that purpose). Significantly, as discussed elsewhere, the commission was to be kept confidential pursuant to the terms of their agreement. This prevented Mr Hernandez from disclosing to patients that he was receiving a commission. The invoices submitted by Mr Hernandez to Osseointegration International included bills for referrals of Ms Schaeffer, Ms Koolhoven and Ms Ulrich. The business model, in other words, was designed to conceal that fact from patients. Dr Al Muderis’ financial benefit was revealed in the financial disclosure form, which patients typically signed (with other papers) after they had arrived in Australia (where the surgeries were scheduled imminently and already paid for).

1248 As already discussed, when Dr Al Muderis attended conferences in the United States, his office organised clinics for him to see prospective and existing patients. Mr Hernandez was involved in organising these clinics, as evident from the emails in evidence. His work at the conferences generally included organising a booth for Dr Al Muderis (so he had a physical presence), arranging for him to present on osseointegration, and preparing and distributing promotional brochures. Dr Al Muderis sought to see as many patients as possible. Emails organising these clinics support that was the approach taken.

1249 The evidence from these former patients, as well as photos and videos, reflected that there was typically a booth advertising Dr Al Muderis’ osseointegration services (e.g. Ms Ulrich, Ms Schaeffer and Mr Bruha). Patients would staff the booth, wearing T-shirts advertising and promoting Osseointegration International. These patients typically wore shorts to display their osseointegration protheses. Mr Bruha gave evidence that Dr Al Muderis insisted he do so after he saw him wearing trousers, despite the fact Mr Bruha did not want to because of the condition of his stomas.

1250 It was agreed in these proceedings that Dr Al Muderis made US$75,000 in profit per American patient in 2018 and 2019.

Common features

1251 The experiences of all the international patients who gave evidence, including Ms Çalan, share several features. As will have been apparent from the earlier discussion, the evidence as to this aspect of Dr Al Muderis’ practice is supported by the documentary evidence and other evidence.

1252 First, although Dr Al Muderis deposes to a procedure (which is said to be his standard procedure) for evaluating prospective patients, that procedure did not occur or apply in relation to the international patients. Any pre-operative assessments generally did not occur until the patient arrived in Australia by which time they had a confirmed surgery date (according to the documentation they received). Patients had also already paid for the surgery but had not yet been warned of the risks and complications of surgery (as discussed below).

1253 Second, of the patients who had contact with Dr Al Muderis before arriving in Australia, their meetings abroad are properly described as consultations. Mr Bruha, Ms Ulrich, Mr Wynne and Mr Ladouceur saw Dr Al Muderis in hotel or conference rooms in the United States and did not see him again until arriving in Australia (except for Mr Ladouceur, who did not proceed with the surgery).

1254 These patients each gave evidence that during these meetings in the United States, they were assessed or examined by Dr Al Muderis, were told (or led to believe) that they were suitable for osseointegration surgery and discussed the cost of the procedure with him. The applicant denied those details of the meetings, alleging the witnesses had concocted their evidence. Their evidence of the consultations is consistent with the description of the clinics in the correspondence of Ms Roberts, correspondence providing patients a confirmed date for surgery before arriving in Australia, and quotes/invoices issued with the price of the surgery (generally consistent with the price quoted to patients during the meetings). It will also be recalled that the letter to Mr Bruha’s insurance company dated 18 May 2017, referred to above at [980]-[983] supports the patients’ evidence of the nature and content of the meetings. As apparent from the consideration of their evidence, I accept the evidence of each of those patients as to the meetings.

1255 Third, Ms Schaeffer, Ms Koolhoven and Ms Çalan gave evidence that they did not have a consultation with Dr Al Muderis until they arrived in Australia shortly before their surgery. That is, they had not met him before arriving in Australia. Although during cross-examination Dr Al Muderis suggested he would have spoken to those patients before they arrived, there is no evidence of this (i.e. no documentary evidence, or evidence from these patients). This was not put in cross-examination to the patient witnesses from the United States. Ms Çalan was clear she only spoke to Dr Rosenblatt before coming to Australia.

1256 Fourth, despite the international patients having limited or no contact with Dr Al Muderis before arriving in Australia, their pre-operative consultations with him in Australia occurred within days of the surgery (sometimes on the day before surgery).

1257 Fifth, all these patients were required to pay for the surgery (and associated expenses) before arriving in Australia, the purpose and significance of which is canvassed below.

1258 Sixth, the first consultations in Australia with Dr Al Muderis generally did not involve any other doctor, in contrast to the domestic osseointegration patients. This is reflected in most of the consultation reports. Certainly, they were not the kind of multidisciplinary consultation meetings Dr Al Muderis described in his evidence. That reflects the relative level of care these international patients received, including the time they were afforded to consider the risks and complications of the procedure. The purpose of the domestic patients’ consultations was to assess their suitability for surgery, such that they had not yet made any meaningful commitment to proceed. As discussed below, the circumstances surrounding these international patients’ consultations were very different and impacts on the issue of whether they gave informed consent.