Alexander v Heise & Anor

NEW SOUTH WALES COURT OF APPEAL

CITATION: Alexander v Heise & Anor [2001] NSWCA 422

FILE NUMBER(S):
40125/01

HEARING DATE(S): 8 November 2001

JUDGMENT DATE: 27/11/2001

PARTIES:
Christine Jeanette Marguerite Alexander - Appellant
Geoffery Heise - 1st Respondent
Keren Heise - 2nd Respondent

JUDGMENT OF: Priestley JA Stein JA Ipp AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20083/99

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL:
P Menzies QC/D Hirsch - Appellant
D Davies SC - Respondents

SOLICITORS:
Maurice Blackburn Cashman - Appellant
Tress Cocks & Maddox - Respondents

CATCHWORDS:
TORT - NEGLIGENCE - medical receptionist - prioritisation of patients - whether a duty of care owed - whether breach of duty - whether all relevant information communicated - exercise of judgment
EVIDENCE - credibility - subject to findings of Master below - ND

LEGISLATION CITED:
Compensation to Relatives Act 1897

DECISION:
1) Appeal dismissed with costs. 2) Cross-appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40126/01
SC 20083/99

PRIESTLEY JA
STEIN JA
IPP AJA

Tuesday, 27 November 2001

ALEXANDER v HEISE & ANOR

The appellant appeals from a decision of Master Harrison, in which it was held that neither of the respondents breached their duties of care to the appellant’s late husband. The claim pursuant to the Compensation to Relatives Act 1897, arose out of the death of the appellant’s husband, Ted Alexander, on 22 March 1996 due to a cerebral haemorrhage. The appellant had attended at the first respondent’s surgery, he being a GP, and had organised an appointment for her husband. The second respondent was the first respondent’s receptionist and also his wife. The appellant’s husband had suffered an uncharacteristic and severe headache during the previous night and, as she was concerned for his health, she arranged an appointment for a full medical check up for the following week. The day before the appointment, however, the appellant found him unconscious and twelve days later he died of a grade V berry aneurism. The appellant argued that had her husband seen a doctor before he suffered the aneurism, his death could have been avoided.

Held:

Per Stein JA (Priestley JA and Ipp AJA agreeing):

The receptionist was attempting to ascertain the duration and severity of the problem and assess its degree of seriousness. She was exercising her judgment. On the information provided by the appellant, Mrs Heise would have been able to make an assessment that the patient’s condition was not life threatening and that he was not in any pain or discomfort. It was perfectly understandable that she would not conclude that it was an urgent problem or that she needed to refer it immediately to Dr Heise. Accordingly there was no breach of duty on the part of the receptionist and it follows that there was no breach of duty by Dr Heise.

Orders:

Appeal dismissed with costs.
Cross-appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40126/01
SC 20083/99

PRIESTLEY JA
STEIN JA
IPP AJA

Tuesday, 27 November 2001

ALEXANDER v HEISE & ANOR

Judgment

PRIESTLEY JA: I agree with Stein JA.
STEIN JA:
Introduction
The appellant appeals from a finding of Master Harrison that neither of the respondents, Dr and Mrs Heise, breached their duties of care to the appellant’s late husband. The Master was hearing part of a claim by Mrs Alexander and her children under the Compensation to Relatives Act 1897. The claim arises out of the death of her husband, Ted Alexander, on 22 March 1996, due to a cerebral haemorrhage.
The appellant’s claim was that her husband’s death would have been prevented if he had been examined by a general practitioner, Dr Heise, the first respondent. The second respondent, Mrs Heise, was Dr Heise’s receptionist. They are husband and wife.
Abadee J had ordered that the Master determine whether the respondents or either of them, were under a duty of care in the circumstances, and if so, whether either of them had breached the duty. The Master found that both respondents were under a duty of care and this finding is the subject of the cross-appeal. She further found that neither of the respondents breached the duty of care. The appellant challenges this finding.
The factual context
The Alexander family moved to Cheltenham in July 1995 and the appellant selected Dr Heise’s surgery as the medical practice for the family. However, only the appellant had attended the practice by the 4 March 1996.
In February 1996 Mr Alexander told his wife that he had been suffering a few headaches and attributed them to use of a mobile phone. They were not severe and required no medication. In late February Mr Alexander suffered what was thought to be a virus with a temperature of 39. He refused to attend the hospital casualty department because he did not think he was sick enough to warrant medical opinion or treatment.
At around 2 am on Monday 4 March 1966 Mr Alexander woke up his wife and told her that he had a very bad headache which would not go away. He had taken two Panadol which had no effect. He asked for one of his wife’s migraine tablets. She gave him one Mersyndol tablet, an over-the-counter product. Mr Alexander took it, returned to bed and subsequently fell asleep. The appellant saw this conduct of her husband as out of character and it was of great concern to her.
The next morning the appellant told her husband that she would make an appointment for him to have a full medical examination. He agreed to this but requested an appointment as late as possible in the evening so as not to interfere with his busy architectural practice. He also needed to travel from his workplace in the city to the surgery at Thornleigh.
That morning Mr Alexander appeared to be well, apparently had no headache and went to work as usual. The appellant said in evidence that ‘he did not appear to be sick’ and that ‘he was fine’.
The appellant herself had an appointment at 6 pm with Dr Ginger, who was a member of the same practice group as Dr Heise. The appellant believed that her husband would want to see a male doctor so she did not mention anything to Dr Ginger. After her consultation she attended to the bill and spoke to Mrs Heise, the receptionist, to make an appointment for her husband. The appointment was made for 6.45 pm on Monday 11 March 1996, one week later.
Between 4 and 10 March 1996 Mr Alexander appeared to be in good health. However, on 10 March the appellant found him unconscious on the bed at home. Twelve days later he died of a grade V berry aneurism. The appellant’s case was that if Mr Alexander had seen a doctor during the week, his death could have been avoided.
The crucial conversation
Clearly the crucial part of the case is what was said between the appellant and Mrs Heise at 6.30 pm or so on 4 March 1996. There were two versions given in evidence which, in material respects, were diametrically opposed. For example, the appellant said that she told Mrs Heise that her husband had had a severe uncharacteristic headache in the early hours of the morning. On the other hand, Mrs Heise denied that Mrs Alexander mentioned any headache. The Master essentially accepted the appellant’s account of what was said and rejected much of what Mrs Heise maintained was said.
The court must, of course, determine the appeal on the basis of the Master’s findings of what was said in the conversation. That this is so is confirmed by the parties not challenging the Master’s findings of fact, except in one minor respect which I will mention later.
The Master found that in seeking to make an appointment for her husband the appellant informed the receptionist of the following. Her husband had had such a severe headache in the early hours of the morning and this was so out of character that he had asked her for a migraine tablet. Secondly, that she wanted him to have a full medical check-up because the headache may have been related to stress at work. Thirdly, she wanted him to have a blood test for prostrate cancer. The Master added that it was likely that the appellant would have repeated that she was worried about her husband’s headache because she accepted the appellant’s evidence that Mrs Heise asked how he was that morning. The Master found that Mrs Alexander replied ‘he did not appear sick and was able to go to work this morning’.
The Master said that Mrs Alexander did not stipulate to Mrs Heise that an appointment had to be by the end of the week but likely said ‘as soon as possible’. This finding is challenged by the respondents and it is clear from the appellant’s evidence that she accepted that she did not ask for an appointment ‘as soon as possible’ but rather ‘some time this week’. Counsel for the appellant accepts this.
I should add to this that the appellant agreed that she did not express any urgency to Mrs Heise about the appointment since her husband was ‘fine’ that morning.
The Master rejected Mrs Heise’s evidence that she offered appointments for the Wednesday or Friday evening or that she would let the appellant know if there were any cancellation. It is plain that the appellant had no reason to be unsatisfied with the appointment she had made for her husband for 11 March.

From the above recounted findings a number of matters may be emphasised. First, Mrs Heise was dealing with Mrs Alexander and not Mr Alexander. The patient himself was not present nor did he contact the surgery.
Second, from the Master’s findings it is apparent that the appellant did not tell the receptionist a number of relevant matters about her husband. They are as follows:
.That he had taken two Panadol tablets with no effect before taking the Mersyndol.
.That in February he had reported to the appellant that he had suffered a few headaches.
.That in late February he had probably suffered a viral condition with a temperature of 39 but sought no treatment.
.That his family had a history of aneurism, although it is not clear that Mrs Alexander was necessarily aware of this.
It was the task of the receptionist, Mrs Heise, to prioritise the appointment. It was clearly not an emergency and Mrs Alexander accepted this. Should the receptionist have concluded that Mr Alexander needed to be seen that day or urgently, or should she have telephoned Dr Heise to ask his advice about when to make an appointment?
Senior Counsel for the appellant submits that once the appellant had indicated to Mrs Heise that her husband had suffered a severe uncharacteristic headache, that should have caused her to telephone Dr Heise. In failing to do so he submits that she breached her duty of care.
Reliance was placed, in particular, on Mrs Heise’s response to a question in cross-examination.

Mrs Heise was asked:
… if the person had come in, as Mrs Alexander says she did, and said this, “I want to make an appointment for my husband, Ted. I’m extremely worried about him as he woke up in the early hours of this morning with such a severe headache that he has asked me for one of my migraine tablets. I can’t tell you how out of character it is for him to take any medication. He has been working so hard and he has been under such a lot of stress lately”, … you would have … immediately contacted your husband on the other end of the telephone to say, “You had better come and deal with this potential medical emergency”, …
Her answer was in the affirmative, although she disputed that Mrs Alexander had used those words.
However, it is plain that what was put to Mrs Heise, which elicited her agreement, was not the whole of what the Master found was said by Mrs Alexander in the relevant conversation. Importantly, indeed critically, it omitted the appellant’s answer to Mrs Heise’s question as to how her husband was that morning. As I have mentioned, this elicited, according to the Master, an answer which indicated that her husband was well, in fact ‘fine’, had no headache and went to work as usual.
It follows in my view that Mrs Heise’s agreement to the question referred to above does not assist the appellant. If the whole of what the Master found was said by the appellant was put, including what appears in the paragraph immediately above, Mrs Heise’s answer may have been quite different.
Reliance was also placed by the appellant on the report of Dr Eric Fisher in which the following was said:
I consider that if Mrs Heise did receive a history that Mr Alexander had woken up in the early hours of the morning with a severe headache and asking uncharacteristically for Mrs Alexander’s migraine tablets as outlined in paragraph 11 of Mrs Alexander’s statement, she should have spoken to her husband concerning the problem.
However, this suffers from the same deficiency. The opinion is given without consideration of the effect of the deceased being well after he woke in the morning without a headache and was able to go to work normally.
Further, if one considers the ‘guidelines’ in the Royal Australian College of General Practitioners Handbook for Medical Receptionists, Mrs Heise was clearly attempting to ascertain the duration and severity of the problem and assess its degree of seriousness. She was exercising her judgment. She knew that the headache had been severe and uncharacteristic and took place around 2 am. She was told that it responded to the taking of a Mersyndol tablet and that Mr Alexander went back to sleep. She was told that the headache had resolved in the morning after Mr Alexander had awoken and that he was then well and went to work as usual.
On the information that she was given by the appellant, Mrs Heise would have been able to make an assessment that the patient’s condition was not life threatening and that he was in no pain or discomfort. In those circumstances, it would be perfectly understandable that she would not conclude that it was an urgent problem to be dealt with by a doctor that day or that she needed to refer it immediately to Dr Heise before making the appointment for one week later.
On this analysis, there was no breach of duty on the part of the receptionist. She was not obliged to consult with the doctor in the circumstances of the Master’s findings as to what transpired. It follows that there was also no breach of duty by Dr Heise.
In my opinion, the Master did not err in finding that there was no negligence by Mrs Heise. Accordingly, the appeal should be dismissed.
The respondents’ cross-appeal against the findings by the Master of the existence of a duty of care on each of them. In light of the conclusion that the Master was not in error in finding that neither respondent breached their duty of care, it is unnecessary to address the cross-appeal. All that I would say is that it is my opinion that both Dr Heise and Mrs Heise (as his receptionist) owed duties of care to the deceased. The scope and content of their duties may be debatable but they are unnecessary to determine on this appeal.
I would propose the following orders:
1. Appeal dismissed with costs.
2. Cross-appeal dismissed with costs.
IPP AJA: I agree with Stein JA.

***********

LAST UPDATED: 28/11/2001

[2001] NSWCA 422

27 November 2001

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Evidence

Legal Concepts

Duty of Care

Negligence

Appeal

Costs

Expert Evidence