Athanasiadis v Likos
[2010] SADC 85
•25 June 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ATHANASIADIS v LIKOS
[2010] SADC 85
Judgment of Her Honour Judge McIntyre
25 June 2010
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE
Plaintiff's wife died in November 2001 as a result of gall bladder cancer which is a rare cancer that does not generate symptoms until it is in its terminal stage. Earlier diagnosis generally occurs as an incidental finding arising from the diagnosis and treatment of another condition such as gall stones. The plaintiff claims damages, including for nervous shock, against his wife's general practitioner contending that his wife had a symptomatic case of gall stones preceding the development of her cancer and that the defendant was negligent in not investigating her complaints of symptoms and arranging for treatment of that condition prior to September 2001.
Held: the plaintiff has not established a factual basis upon which it can be said that a reasonably competent medical practitioner should have investigated the possibility that his wife had gall stones prior to September 2001. Further, even if the defendant had diagnosed the gallstone condition prior to September 2001, the plaintiff has failed to establish that earlier diagnosis would have resulted in removal of the gall bladder at a time when the gall bladder cancer and subsequent death could have been avoided. Even if the plaintiff had been successful in establishing negligence he has not established that he is suffering from a psychiatric illness and thus has failed to establish an entitlement to damages for nervous shock.
Civil Liability Act 2004 s23, referred to.
Scala v Mammolitti (1965) 114 CLR 153; Rogers v Whitaker (1992) 175 CLR 479; Whitehouse v Jordan (1981) All ER 267; Von Den Heavel v Tucker (2003) 85 SASR 512; QEH v Curtis (2008) 102 SASR 534; Jaensch v Coffey (1984) 155 CLR 549; Phan v Lawson (1997) 68 SASR 124; Jones v Dunkel (1959) 101 CLR 298, considered.
DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES
Evidence presented deficient - Courts are obliged to use best endeavours to assess damages even if there are deficiencies in the evidence however, in the present case, given the findings on liability and the paucity of evidence there is no utility to proceeding with an assessment of damages. Observations made on claims under Survival of Causes of Actions Act 1940 and for aggravated and exemplary damages.
Survival of Causes of Action Act 1940 s3(1)(b), referred to.
Lamb v Cotogno (1987) 164 CLR 1; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Whitfield v DeLauret & Co Ltd (1923) CLR 71 at 77; Wilson v McLeay (1961) 106 CLR 523, considered.
ATHANASIADIS v LIKOS
[2010] SADC 85Summary
Mrs Theodora Athanasiadis died at the age of 65 on 22 November 2001 as a result of gall bladder cancer leaving a husband and three adult sons. She had consulted her general practitioner, Dr Peter Likos, on a regular basis since January 1997. Her family contend that Dr Likos was negligent in his treatment of Mrs Athanasiadis.
Gall bladder cancer is a rare cancer that does not generate symptoms until it is in its terminal stage. Earlier diagnosis generally occurs as an incidental finding arising from the diagnosis and treatment of another condition such as gall stones. The family do not complain that Dr Likos failed to diagnose the cancer; rather, they contend that Mrs Athanasiadis had a symptomatic case of gall stones preceding the development of her cancer and that Dr Likos was negligent in not investigating her complaints of symptoms and arranging for treatment of that condition at an earlier date. Dr Likos says that the first time Mrs Athanasiadis complained of symptoms suggestive of a gall bladder problem was in September 2001 shortly prior to his arranging for her emergency admission to the Royal Adelaide Hospital (“RAH”).
For the reasons that follow I consider that the plaintiff has not established a factual basis upon which it can be said that a reasonably competent medical practitioner should have investigated the possibility that Mrs Athanasiadis had gall stones prior to September 2001. Further, even if I accepted that Dr Likos should have diagnosed the gallstone condition prior to September 2001, which I do not, the plaintiff has failed to establish that earlier diagnosis would have resulted in removal of the gall bladder at a time when the gall bladder cancer and subsequent death could have been avoided.
Background
Mrs Athanasiadis was born in Greece on 10 March 1936. She married her husband Mr Efstathios Athanasiadis, the plaintiff, on 3 November 1962 in Greece. They had three sons; John born in 1964 in Greece, George born in Australia in March 1971 and Ahileas born in Australia in 1976.
On arrival in Australia Mrs Athanasiadis and her family lived at Napperby near Port Pirie. Subsequently they moved to Port Pirie. Mr Efstathios Athanasiadis lost the sight in his right eye as a child. On 3 November 1991 he lost the effective vision in his left eye. This prevented him from working and he became dependant on a disability support pension. His wife became his full time carer and the family relocated to Adelaide so that he could be close to his various treating doctors.
Mr and Mrs Athanasiadis arrived in Adelaide just prior to Christmas 1996. In early January 1997 Mrs Athanasiadis experienced health problems and in consequence she consulted Dr Peter Likos.
Dr Likos is the son of Greek migrants who also lived near Port Pirie. The extent to which the Likos and Athanasiadis families were acquainted was the subject of some contention however it is plain that the families knew of each other even if they were not as well acquainted as some of the evidence suggested. Whether because of this or some other reason, the Athanasiadis family commenced to consult Dr Likos following their arrival in Adelaide. Dr Likos speaks Greek and this was obviously of assistance to both Mr and Mrs Athanasiadis who did not speak good English.
Mr and Mrs Athanasiadis consulted Dr Likos on a regular basis after their arrival in Adelaide. The nature and extent of those consultations is in issue. The plaintiff and his family contend that Mrs Athanasiadis complained regularly over the years to Dr Likos of pain in the abdomen consistent with gall stones and that he dismissed these complaints as arthritis. Dr Likos denies that this was the case.
It is the plaintiff’s case that Dr Likos should have investigated Mrs Athanasiadis for gall stones at a much earlier stage than actually occurred. It is said that such investigations would have shown that she had gall stones and that she would have then had the gall bladder removed. That being the case the plaintiff further contends that Mrs Athanasiadis would not have gone on to develop cancer of the gall bladder or, if that condition had commenced, it would not have proceeded to a terminal state.
There is some dispute about the circumstances leading to the investigation of Mrs Athanasiadis for possible gall stones and her subsequent admission to hospital on 7 September 2001. It is however uncontentious that she was admitted to hospital on that date and that she underwent surgery for removal of the gall bladder on 10 September 2001. She was then diagnosed with cancer of the gall bladder which had spread to the liver. The only treatment available to Mrs Athanasiadis was in the form of palliative care and she died on 22 November 2001.
The Proceedings
These proceedings were issued in the Magistrates Court Civil Division on or about 28 October 2004 naming Mrs Athanasiadis’ husband and her three sons as plaintiffs. The proceedings were subsequently transferred to the District Court. The matter took some considerable time to come to trial.
On the first morning of the trial it became apparent for the first time that Mrs Athanasiadis’ three sons, the second, third and fourth plaintiffs, did not intend to pursue their claims. Application was subsequently made for leave for those three plaintiffs to discontinue their action and for consequential amendments to be made to the statement of claim. That application was granted, subject to resolution of the question of costs of discontinuance, on 18 March 2010.
The trial proceeded on the basis of a claim by the first plaintiff, Mr Efstathios Athanasiadis, for wrongful death, a Survival of Causes of Action Act claim and a claim for nervous shock. I will refer to him as the plaintiff.
The trial took place over a period of 10 days. The plaintiff gave evidence as did his three sons. The plaintiff also called two expert witnesses; Dr Arnold Mann, a consultant surgeon and the author of a number of text books, and Dr Craig Raeside, a psychiatrist. Reports were tendered from Dr Mann dated 6 May 2009[1] and 15 March 2010[2]. Dr Raeside’s two reports dated 22 May 2009[3] and 15 March 2010[4] were also tendered. In addition a report of Mr Tony Williams, a surgeon specialising in general and laparoscopic surgery dated 11 July 2006 was tendered by consent.[5]
[1] Exhibit P1
[2] Exhibit P2
[3] Exhibit P3
[4] Exhibit P7
[5] Exhibit P2
Finally, the plaintiff called Ms Susan Hewston, the manager of Home Care Plus a division of the Paraplegic Quadriplegic Association of South Australia Incorporated to give evidence about commercial care rates. In addition, the plaintiff tendered a number of documents.
The defendant gave evidence and called three expert witnesses; Professor Glynn Jamieson, the Dorothy Mortlock Professor of Surgery who specialises in surgery of the upper gastro intestinal tract, Dr Peter Joyner, a general practitioner of some thirty years experience, and Dr Darryl Watson, a psychiatrist. Their reports were tendered as exhibit D1. In addition, the defendant tendered a number of documents.
The expert witnesses were all most impressive and there was little significant difference of opinion between them. Generally speaking, any difference can be explained by the disparity in the history that they were provided as a basis for their opinions. This history is the main area of dispute in this matter.
Dr Likos was a careful and impressive witness who spoke with the benefit of contemporaneous notes. He also appeared to have a good memory of his attendances upon the late Mrs Athanasiadis. His evidence made sense and was internally consistent and congruent with the objective evidence. The same cannot be said about the evidence of the plaintiff and his sons.
Given the length of time that has elapsed since the events complained of, it is not surprising that the plaintiff and his sons had difficulty in remembering the precise sequence of events and what occurred on various occasions. They had no reason to make notes or even to pay particular attention to matters which have now assumed some importance. A good deal of their evidence appeared reconstructed and it became plain that their recollections are coloured by a very firm belief that Dr Likos could, and should, have done something to prevent the death of their wife and mother. Notwithstanding their protestations to the contrary, it was very clear that they all harbour considerable resentment and anger towards Dr Likos.
I will expand upon these issues in more detail in my discussion of the evidence. Suffice to say, that I do not accept the evidence of the plaintiff and his sons on a number of topics and that I prefer the evidence of Dr Likos wherever there is a conflict.
What duties were owed and to whom?
The plaintiff asserts three causes of action. First a claim under the Survival of Causes of Action Act 1940. Second a claim under the Civil Liabilities Act 2004 for wrongful death. These two claims require the plaintiff to establish that there was a breach of a duty owed by Dr Likos to the late Theodora Athanasiadis.[6] The third is a nervous shock claim which requires the plaintiff to establish that Dr Likos breached a duty owed to him.[7]
[6] Section 23 Civil Liability Act 2004
[7] Scala v Mammolitti (1965) 114 CLR 153
In the circumstances of this matter I find that Dr Likos owed a duty of care to both the late Mrs Theodora Athanasiadis and her husband Mr Efstathios Athanasiadis to exercise reasonable care and skill in the provision of professional advice and treatment to Mrs Athanasiadis. That duty extends to the diagnosis and treatment of relevant medical conditions. The relevant standard of care is that of the reasonably competent general practitioner.[8] The plaintiff must show more than an error of judgment.[9] In addition, the breach of duty must be causative of loss. In this case the plaintiff must establish on the balance of probabilities that had Dr Likos not breached the relevant duty Mrs Athanasiadis would not have contracted or died from gall bladder cancer.[10]
[8] Rogers v Whitaker (1992) 175 CLR 479
[9] Whitehouse v Jordan (1981) All ER 267
[10] Van Den Heuvel v Tucker (2003) 85 SASR 512 and QEH v Curtis (2008) 102 SASR 534
What is gall bladder cancer?
Mr Mann, Professor Jamieson and Dr Joyner all gave evidence concerning gall stones and gall bladder cancer. In addition I had the benefit of Mr Williams’ report. All agreed that gall bladder cancer is an extremely rare condition and that by the time the gall bladder cancer becomes symptomatic it is in its terminal phase.
The position is well summarised in the first report of Mr Arnold Mann[11] where he says:
In Western society gall bladder cancer is very uncommon. A general practitioner might never see a case in the whole of his career. Gall stones (biliary calculi) are on the contrary very common indeed. Gall bladder cancer is a silent killer. It does not of itself cause much by way of symptoms until it is much too late to do anything curative. If a mass can be felt on palpation of the abdomen, the chance of a cure is very small indeed – probably zero. Hence whether or not an abdominal examination is performed, the prognosis will not be altered. Gall stones however often do cause symptoms (see below) and do lead to abdominal tenderness and swellings: it is their existence which allows earlier (incidental) diagnosis of gall bladder cancer from time to time.
[11] Exhibit P1, p2
I note the evidence given by Dr Likos that he had never seen a case of gall bladder cancer prior to Mrs Athanasiadis and the evidence of Dr Joyner a general practitioner of some 30 years experience who said that he had only seen one prior case of gall bladder cancer during his career.
The plaintiff does not complain that Dr Likos failed to diagnose gall bladder cancer rather he says that Dr Likos should have diagnosed gall stones. Mr Mann gave evidence that gall stones do not cause gall bladder cancer and that it is possible to have gall bladder cancer without gall stones.[12] I do not understand the plaintiff to be contending otherwise. What the plaintiff says is that had the gall stones been diagnosed at an earlier stage Mrs Athanasiadis would have had her gall bladder removed at that earlier stage and that this would have prevented her death by gall bladder cancer.
[12] Transcript p163 - Mann
When would Mrs Athanasiadis’ gall bladder cancer have been curable?
It is not in dispute that Mrs Athanasiadis had gall stones at the time her gall bladder was removed in September 2001. It is not possible to say how long the gall stones had been present. The doctors agreed that treatment of gall stones by the removal of the gall bladder is a common and relatively risk free procedure. They further agreed that removal of the gall bladder at an early enough stage would have either avoided the development of the cancer altogether or alternatively avoided the malignancy moving out of the gall bladder which would have enabled treatment and a favourable outcome. The area of contention was the time at which Mrs Athanasiadis’ cancer would have been at a curable stage.
Mr Tony Williams’ report indicated that if Mrs Athanasiadis’ gall bladder had been removed before the malignant change occurred the subsequent cancer would not have developed. He said that it was impossible for him to say precisely when Mrs Athanasiadis’ gall bladder cancer started but he considered that it was likely that it occurred in the last two years of her life.
Dr Mann stated in his report:[13]
It is unknown how long it takes for a pre-malignant change in the gall bladder mucosa in the form of an adenoma or dysplasia to become an adeno-carcenoma but it is established that many gall bladder cancers originate from dysplasia and (benign) adenomas. Obviously if one can remove the gall bladder when the tumour is still benign, or before malignant cells have moved outside of the gall bladder, the cure rate would be 100% minus operative mortality of 0.5%. If the patient’s diagnosis could have been made before metastasis had occurred she would (obviously) not have died of this disease per se.
[13] Exhibit P1, p4
In evidence Dr Mann repeated that the state of medical knowledge was such that he was unable to say how long before 2001 this state of affairs would have existed but said that the cancer would have been there “some years”.[14] He also said that it was likely incurable in the 12 to 18 months prior to Mrs Athanasiadis’ death. His view was best summarised in the following exchange;[15]
"QYou have read Dr Jamieson’s report.
AYes. If you are referring to what I have just said, yes, I would agree with him.
QIn two years of death the cancer was probably incurable’; you probably agree with that.
AProbably
QIndeed, the view that you’ve expressed to her Honour today is that at about 5 years before death that is, within your judgement, the tipping point.
ASomewhere round that time, I’m not going to be tied down to five years, it might be four years, it might be six years. But the closer you get to 2001 the more likely it is that even if it had been discovered then it would have made no difference whatever to the outcome.
[14] Transcript p169
[15] Transcript p180
Professor Jamieson stated in his report:[16]
Unfortunately it is impossible to be certain when Mrs Athanasiadis’ gall bladder cancer would have been early enough to have been at a curable stage. One can only deal in probabilities; I think it is unlikely it would have been a curable one to two years earlier, possibly at three to four years earlier and probable if the gall bladder had been removed greater than four years earlier.
[16] Exhibit D1, p2
In evidence Professor Jamieson reiterated that it was not possible to know when the cancer would have been curable but that in his view it would have been incurable within two years of her death. He disagreed with the view expressed by Mr Williams and concurred with Mr Mann.[17] The difficulty with Mr William’s view is that it is only briefly expressed in his report and, because he was not called to give evidence, his view was not clarified or tested. I prefer the views expressed by Professor Jamieson and Mr Mann to that of Mr Williams as to the time frame.
[17] Transcript p711
The conclusions of Professor Jamieson and Mr Mann as to the time at which the condition would not have been curable means that diagnosis of the gall stone condition and removal of the gall bladder in 1999 or 2000 would have made no difference to the outcome. Diagnosis in late 1997 or 1998 and removal of the gall bladder at that stage would give the possibility of a cure. The only probability of a cure was if the gall bladder was removed greater than four to five years earlier.
What are the indicia of gall stones?
A key question to be determined is whether Dr Likos should have diagnosed Mrs Athanasiadis as having a gallstone condition earlier than September 2001 and, if so, what treatment would have been offered to her.
All of the medical experts agreed that gall stones could be a-symptomatic – in other words that it was possible to have gall stones and yet not experience any symptoms. Mr Mann described the mechanism by which symptoms are caused as follows:[18]
In patients that don’t have jaundice due to the stone running into the common bile duct, the pain is caused by the jamming in the cystic duct; that is, the duct between the gall bladder and the main bile ducts. It is getting jammed there and the gall bladder is trying to contract against it and that produces the colic of gall bladder pain
[18] Transcript p166
When they are symptomatic gall stones can cause a range of symptoms. Dr Mann described the classic symptoms in perhaps 80% of patients as being “that the patient is suddenly seized with very severe colicky abdominal pain”. He described colic as follows:[19]
Colic means that it is a pain that comes in waves. But this wave can be a pain that lasts for many hours. It makes the patient usually very restless and is often associated with either dry retching or vomiting and certainly loss of appetite.
[19] Transcript p164-5
Professor Jamieson described classical gallstone symptoms as follows:[20]
The classical picture is of intermittent right upper quadrant pain: It is a particular type of pain which tends to make the patient move around, they feel that if they could only get comfortable the pain might go away so they tend to stand and sit, move from one side to the other and so on and it is intermittent in nature.
[20] Transcript p709
Dr Joyner described the symptoms typically caused by gall stones as follows:[21]
Typically in my experience gall bladder pain is a focused episodic pain focused on the right upper quadrant in association with other episodic features such as temperature, vomiting etc etc. Patients often can’t move because they are in pain. If they bend forward it hurts a lot more and they present typically as an acutely ill patient, often requiring morphine or admission to hospital.
[21] Transcript p734
If gall stones are suspected, investigations such as plain x-ray of the abdomen, ultrasound or magnetic resonance imaging are appropriate. If these confirm the presence of gall stones then surgical removal of the gall bladder is a relatively safe and common procedure for treatment. A finding of gall stones does not necessarily mean that the gall bladder must be removed. The decision about surgery requires the balancing of severity and regularity of symptoms against the risks of surgery. [22]
[22] Transcript p168; Dr Joyner report dated 26 November 2007 (D1 page 44)
All of the doctors agreed that, if Dr Likos’ clinical notes were accurate, then there was no reason for Dr Likos to consider a diagnosis of gall stones prior to September 2001. It follows that if there was no reason to consider such a diagnosis there was no reason to consider removal of her gall bladder.
Dr Mann stated in his report that assuming that the Hilton Medical Centre records were accurate:
There is no basis whatsoever for the allegation that the doctor failed to undertake adequate investigation of his patient’s symptoms. There is a record of low back pain radiating to the calf which is a symptom of disc disease causing sciatica and not a symptom of gall bladder disease. The use of NSAIDS such as Celebrex would be appropriate for such a condition, if it was mild, and a diagnosis of an arthritic type condition not at all unreasonable. There was nothing she complained of before 2001 that would have led a prudent medical practitioner to order a cholecystogram, plain x-ray of the abdomen or imaging by ultrasound or magnetic resonance imaging. Any diagnosis made in 2001 would have been far too late to alter the fatal course of the disease in any significant way. The terminal care seemed sympathetic and helpful.
Dr Williams in his report stated as follows:
The patient was referred for consideration of removal of the gall bladder when it was demonstrated that it was the source of the patient’s symptoms….. prior to this date Dr Likos appeared to believe the symptoms of which Mrs Athanasiadis was complaining originated from her arthritic back. This assessment seemed to be reasonably based on the nature of the symptoms and the investigation results as documented in his notes.
Professor Jamieson expressed a similar view and Dr Joyner stated as follows in his report:[23]
In essence the patients Mrs Athanasiadis suffered from a silent malignancy namely that of cancer of the gall bladder. This did not show itself clinically as is absolutely very common until it was discovered in conjunction with gallstone disease causing an episode of colysistitis a degree of perforation of the gall bladder as a final event in the progression of that illness. There are no documented complaints that could in any way be related to gall bladder disease prior to the presentation in September 2001 and there is evidence from Dr Likos’ notes and from the intern taking notes at the RAH that this pain had, in essence, been present for three days only. The demise of the patient relatively soon after that was unfortunate but expected in view of the very aggressive nature of this malignancy, of her age and underlying diabetes affecting her body’s ability to deal with that rapidly spreading malignancy.
[23] Exhibit D1 p50
The three doctors who gave evidence on this topic, Professor Jamieson, Dr Mann and Dr Joyner, amplified their views as expressed in their reports that if the true state of affairs was as outlined in Dr Likos’ notes then there was no reason to suspect gall stones prior to September 2001.
The critical issues to be determined therefore are whether the notes are accurate, what complaints were made to Dr Likos by the late Mrs Theodora Athanasiadis and when those complaints were made.
What is the plaintiff’s case about the symptoms reported to Dr Likos?
A difficulty with the plaintiff’s case is the internal inconsistency of his evidence and the lack of consistency between the plaintiff and his sons about the symptoms reported by Mrs Athanasiadis to Dr Likos and the timing of those reports.
The plaintiff’s evidence
Mr Efstathios Athanasiadis’ evidence was given with the assistance of an interpreter. At times it was difficult to get the whole of his answer because he became heated and voluble causing great difficulty for the interpreter. His vision impairment also caused issues for the interpreter who was unable to signal to him to slow down or stop. Making full allowance for the difficulties Mr Athanasiadis experienced in giving his evidence there were a number of significant inconsistencies which I do not consider were caused by the interpreting issues. Mr Athanasiadis had a very limited grasp upon dates and a poor recollection of details. Much of his evidence appeared reconstructed.[24] Although he denied this, it is my view that the plaintiff’s evidence was coloured by anger and a very firm belief that Dr Likos was responsible for his wife’s death. Whilst this is in some ways understandable because he is clearly very distressed about his wife’s death, it meant that his reconstruction of past events occurred in the light of that opinion.
[24] Transcript p130-1; 149-50
Mr Athanasiadis gave evidence that he and his wife generally saw Dr Likos together until a time when he says he had an argument with Dr Likos and stopped consulting him. His evidence about the time he stopped seeing Dr Likos was initially as follows:[25]
[25] Transcript p37-9
QWas there a time when you stopped seeing Dr Likos.
AYes when we had an argument with him.
QWhen did that take place.
AI don’t remember exactly but it was one year before she passed away and even before that I had some trouble with him.
QDo you remember whether your falling out with Dr Likos was at a consultation with him.
AAlright. I have had an argument with him because my wife was in a lot of pain and I was asking him to send her for x-ray and he was telling me that he would but he didn’t. He diagnosed her with arthritis.
QWhen you had that argument were you present at Dr Likos’ surgery for you or to accompany your wife.
AFor my wife.
QShe was present when you had that argument.
AYes. Because I told him “can I speak” I told him “my wife has got pain in her tummy why don’t you send her to a specialist, don’t kill her because you are going to kill me as well.”
QYou said it was about a year before your wife died, do you remember when that took place, what month. Please break down your answers.
AI don’t remember exactly when it was but I remember that he gave me the flu injection at that time. Then I said “you’re not going to see me anymore because you’re going to kill my wife and I am going to leave this minute and I am going to go to a different doctor, Dr Zervos.”
QWas the flu injection a regular thing you had.
AYes, regularly once a year.
QDo you remember when in the year you would go in for your flu shot.
AI believe it must have been during March or April or it could be February.
QOf which year.
AI believe it was during 2000.
QDid your wife on that occasion complain of any pain to the doctor.
AYes.
QYou heard her complain to the doctor.
AI told him “doctor send her for x-rays please because she sleeps all night on the veranda”.
QWhat did you hear your wife say to the doctor on that occasion when you had the flu shot.
AI heard her say “doctor I’m in pain”. He said “you’ve got three different kinds of arthritis and I will give you tablets for the pain” and I said to him “please send her for x-rays”.
QDid your wife say where the pain was.
AShe took my hand and she put it (indicating under the right breast area).
QDid she say to the doctor where the pain was.
AYes she did tell him.
QCan you recall as closely the words that she used.
AI remember she took my hand and she put it there. I know very well that she say that she had pain in her tummy.
Initially, in examination in chief, the plaintiff gave evidence that his wife had constant pain from 1997 when she first started to consult Dr Likos. He said that he heard his wife making complaints to the doctor as follows:[26]
[26] Transcript p41
A Yes, I would hear her, she would say ‘All my body hurts, don’t only look at my abdomen or my stomach, don’t look at my back, it’s my stomach that hurts my abdomen, sorry not stomach’.
QHow long was she complaining of that to the doctor before February, March or April 2000.
ASince 1997, ‘98, since we came down here, she always complained.
QWas it at each time that she went and saw the doctor that she complained or were there times when she didn’t complain about pain to her abdomen.
ASometimes she was complaining very much and the doctor was prescribing tablets to stop the pain.
QDuring that period at home, did your wife complain of pain.
AYes she was in pain and she was complaining a lot.
QWhat was she saying.
A“It hurts a lot”. She was saying that she couldn’t do anything.
QWhen you had that argument with Dr Likos in February, March, April 2000, why were you dissatisfied with him.
ABecause he was not sending her, like I was asking him to, to a specialist.
QHad you asked him on a prior occasion to do that?
AYes, before I left from him I would ask him. And that’s the reason I left him because he was ridiculing me.
Just prior to his wife’s cancer diagnosis Mr Athanasiadis said that she was in a lot of pain. She complained of pain on the right side of her chest just below the breast and she was having difficulty sleeping. He says in view of this he told his son, George, to go to Dr Likos with his wife and not to leave his rooms without an x-ray being organised.[27] George took her for the x-rays and then they immediately went back to see Dr Likos. He said his wife went to hospital the next day and that George took her.
[27] Transcript p43-4
In summary, the plaintiff’s evidence in chief was that his wife had constant pain in the stomach area from 1997, that Dr Likos failed to treat that pain or refer her for further investigation and that the doctor would not listen to him when he expressed his dissatisfaction resulting in an argument at the time of his flu injection in 2000 following which he did not personally consult Dr Likos again.
The picture changed somewhat when Mr Athanasiadis was cross-examined. His evidence as to what symptoms were complained of and at what time became most unclear. Initially he repeated his evidence in chief that his wife was in pain from the time of her first consultation with Dr Likos in 1997. He qualified this slightly by saying that at first it wasn’t so severe but that as time went by it increased.[28]
[28] Transcript p96
He had no recollection of his wife ever suffering from a kidney stone or the stone falling out in early 1997.[29] He did recall that she went to hospital in January or February 1997 but could not recall why that was or if it was Dr Likos who sent her there. He did not recall his wife having pain for about a month in early 1997 and then recovering. He was asked:[30]
QAgain you don’t remember that she was back to normal by February 1997, do you.
AThat she was back to normal no. The pain was there always but it was mild.
QHave you assumed that your wife had the same pain in 1997 as she had in 2001
ANo, her pain had increased much more by then.
QBut it was a different pain wasn’t it
AYes, very different. Yes because she was in so much pain that she would get up during the night and she would go and sleep on the veranda.
[29] Transcript p94
[30] Transcript p95
The pain he was describing at this point in his evidence was, apparently, pain in the abdomen. At another point in his evidence he said that he did not know where the pain was in 1997 as he did not ask her. He did not know whether it was in her stomach or her back.[31] On other occasions he said she complained of pain in her stomach area.[32] On yet other occasions his evidence was that he was being told of widespread symptoms, including back pain on movement, all around her body.[33]
[31] Transcript p94
[32] Transcript p113
[33] Transcript p119
Mr Athanasiadis also changed his evidence about the first time his wife placed her hand on her body to show him where the pain was. Initially, he said it was 12 – 18 months before her death[34] but later he said it was 8 or 10 months before she died.[35]
[34] Transcript p83, 95 and 123
[35] Transcript p270
When it was put to Mr Athanasiadis that the first time his wife suffered the pain on the right side just beneath her breast was in September 2001 he said:
ANo, it wasn’t then, it was much earlier, one year or one and a half years ago
QIt wasn’t four years before that was it
AShe was in pain – she had pain, but I didn’t ask her why she had the pain
QSo she had that pain four years before the operation did she.
AThe pain? Yes.[36]
[36] Transcript p93
At another point on the same topic he was asked
QDo you agree that in early September 2001 your wife started to experience pain on the right hand side of her chest just beneath the breast area.
AYes, she had these pains in one and a half years before that
QSo you think that she had that from about March 2000, do you
AEven before that she must have had it
QAre you just guessing Mr Athanasiadis
AI am guessing but she had all these pain; she was in pain all over in all her body. She was telling the doctor and he was telling her ‘You’ve got three different kinds of arthritis’ and she said “but when the weather changes it’s not only then it’s most of the time’.
He went on to say that she always had the pain and that it was not getting worse before she went to hospital, that:
…it was the same as it was one month before even two months before. She had this pain for quite a long time before. [37]
[37] Transcript p124
The history of events leading to Mrs Athanasiadis’ admission to hospital in September 2001, as outlined in Dr Liko’s notes, was put to the plaintiff. He did not agree with it. He maintained that the only reason Dr Likos referred Mrs Athanasiadis for further investigations was his son’s insistence.[38] His evidence was as follows:
QYou see Dr Likos did not need to be talked into arranging for a CT scan in September 2991, did he
AIf my son had not gone along to insist he would not have sent her because he practically send them away, got them out of the door
QThere was never any argument about Dr Likos sending your wife to hospital to see a specialist was there.
ANo, it’s not like that. She had a problem, he should have sent her.
QYour wife had increased pains in September 2001 so Dr Likos arranged for a CT scan and for your wife to be seen at the Royal Adelaide by a specialist.
AThat’s lies. I had to practically fight for him to send her.[39]
[38] Transcript p128-9
[39] Transcript p129
Another illustration of Mr Athanasiadis’ difficulty with dates is the topic of his alleged argument with Dr Likos. When cross-examined about the evidence he had given the previous day concerning the argument with Dr Likos he was asked as follows:[40]
[40] Transcript p104-5
QDo you remember saying this to Her Honour yesterday when your barrister was asking you the question “do you remember when in the year you would go in for your flu shot” – you said I believe it must have been during March or April or it could have been February.
AYes around there sometime.
QDo you remember your barrister asking you which year and your answer to Her Honour was “I believe it was during 2000”.
AI said such a thing yesterday 2000?
QYes.
ANo. Was that the last injection that I had at Dr Likos?
QThat’s what you said yesterday.
AWhy are you trying to confuse me now.
QDo you agree that it is what you said yesterday.
AI don’t remember.
QWhat do you remember telling Her Honour yesterday?
AI don’t remember exactly I’ve said that after the last injection I have had I never went back to him. That is all I know I don’t know anything else.
Dr Likos’ medical records show that Mr Athanasiadis had a flu injection on the 21st March 2000 following which there were apparently 12 consultations with Mr Athanasiadis in the year 2000. The notes show that another flu vaccination was given on 14 February 2001. When this was put to Mr Athansiadis he changed his evidence that he last saw Dr Likos after his flu injection in 2000 to saying that he did not go back to Dr Likos after the flu injection in 2001. This was confirmed by him in re-examination was follows when he was asked to say when the last flu injection occurred:[41]
AOne year before she died, eight months or 10 months before she dies. I don’t believe it was one year, it was the same year, the last injection that I have had done.
QAre you able to explain if you said initially in your evidence it was in 2000, February March April 2000, which was longer than 10 months.
AWhen did I say that? He gave me an injection then as well but that was not when I left.
QYou remember that it was put to you that you continued to see Dr Likos in 2000
AYes, I was going to Dr Likos in 2000 because he was my family doctor.
I note that the plaintiff’s statement of claim asserts that Dr Likos was his general practitioner “up to and including about mid-2000”.
[41] Transcript p270
Despite the date change his evidence on this topic remained consistent in two respects. First that he stopped seeing Dr Likos after the flu injection and did not consult him again and second that he started to see Dr Zervos immediately thereafter.[42]
[42] Transcript p109-10
It was put to Mr Athanasiadis that after the influenza injection on 14 February 2001 he saw Dr Likos on 27 February 2001 related to eye drops and on the same day he received a pneumonia injection. Mr Athanasiadis rejected that proposition saying that he did not have such an injection. Further dates of consultation were put to Mr Athanasiadis from Dr Likos’ notes namely 30 May 2001, 26 June 2001, 30 July 2001. Mr Athanasiadis denied all of these attendances. It was further put to him that his son obtained medication from Dr Likos on his behalf on 24 October 2001 and 16 November 2001. Mr Athanasiadis became very heated at this stage asserting that Dr Likos should be put in jail for saying such things.[43] Later in cross-examination when it was put to him that he did not stop seeing Dr Likos until he had an argument with him in October 2001 about his wife’s cancer diagnosis, Mr Athanasiadis became visibly agitated and accused Dr Likos of defrauding Medicare. He repeated this allegation of fraud more than once.[44]
[43] Transcript p105
[44] Transcript p117 and p120
Dr Likos denied a falling out with Mr Athanasiadis of the type he described or indeed any argument with Mr Athanasiadis until after Mrs Athanasiadis was diagnosed with cancer. He described an incident in October 2001 when Mr Athanasiadis threatened to kill him. Dr Likos confirmed that he saw Mr Athanasiadis as outlined in his notes and as put to Mr Athanasiadis. He denied absolutely the allegations of fraud and he produced some Medicare claim forms signed by Mrs Athanasiadis on behalf of her husband.[45] Dr Likos said that he only became aware of Mr Athanasiadis consulting another medical practitioner when his son George mentioned it to him at a consultation in about 2002.
[45] Exhibit D5
Dr Zervos’ medical records relating to Mr Athanasiadis were tendered by consent.[46] These show that Mr Athanasiadis first consulted Dr Zervos on 27 November 2000 and that he saw Dr Zervos at least once a month thereafter. There was accordingly some overlap between the two doctors. This is inconsistent with Mr Athanasiadis’ evidence that once he started to see Dr Zervos he no longer saw Dr Likos and his evidence that he went to see Dr Zervos immediately after the flu injection whichever year that may have been.
[46] Exhibit D3
I do not accept the evidence of Mr Athanasiadis on this topic and I prefer that of Dr Likos. I find that there was no argument with Dr Likos at the time of a flu injection in either 2000 or 2001. I further find that Mr Athanasiadis continued to consult Dr Likos up to the time of his wife’s diagnosis in September 2001.
George Athanasiadis
George Athanasiadis is the second son of the late Theodora Athanasiadis and the plaintiff. He also consulted Dr Likos when the family moved to Adelaide. He was living close to his parents with a girlfriend. He visited his parents regularly particularly after he had a work accident in October 1998 and stopped working due to his injuries.
Mr George Athanasiadis said that he regularly took his mother and father to see Dr Likos. He said that if he took both of them they would go in together to see Dr Likos but if his mother went on her own he would go in with her.
He agreed that it was difficult for him to recall exact dates and events. Not surprisingly, he had no notes or records to refresh his memory. He had a number of stressful experiences during the relevant years including his work accident in October 1998 which caused injuries that prevented him from working and which resulted in drawn out proceedings over his WorkCover entitlements that were only resolved in 2002. In addition he separated from his fiancée in early 2001 causing him to return to live with his parents and, he agreed, a degree of distress.
He said that in 1997 he took his mother to the doctor on numerous occasions – over 10 times. He said she had pains all around her body. He recalled an occasion in late 1998 when they saw another doctor at the surgery a woman doctor called Dr Psevdos. His mother told Dr Psevdos that she had pain all over her body. She showed her the site of her pain by placing both hands in the middle of the abdomen moving them around to her back.[47] He said that, months later in 1999, they saw Dr Likos again and his mother complained of pain and showed Dr Likos exactly the same as she showed the lady doctor.[48] After that George Athanasiadis remembered that Dr Likos told her mother to touch her toes.[49] He recalls going back to see Dr Likos with his mother on numerous occasions after the visit where she was made to touch her toes. He was asked what happened on these occasions as follows:[50]
QDid she say anything to the doctor.
AYes she used to tell him – I can’t recall at what time after, that would have been in the middle of 1999 onwards, when she would go to the consultation she would say sometimes she is hurting and sometimes she is not in the same spots. The pain varied.
QWhat parts of her body did she complain were hurting.
AJust the same. I can’t recall other times than them specifically, if she indicated pain to him or not, but she would tell him that she is still in (uses Greek word) meaning pain and he said “it might be arthritis or old age or diabetes”.
[47] Transcript p303
[48] Transcript p305-6
[49] Transcript p306
[50] Transcript p308
He was quite adamant that she complained of pain to Dr Likos by indicating under her breasts all the way around to her back in 1999.[51] He couldn’t remember her specifically indicating where she was in pain in 2000 but said that she was always in pain and that Dr Likos would always say it was arthritis. He described his mother as having complained of fluctuating pains all over the body all the time.
[51] Transcript p310
He gave evidence that he became particularly concerned about his mother’s health in 2001. Accordingly he checked her heart rate using a monitor on a stationary exercise bike that he had at home. This showed that her resting heart rate was over 100. He said this occurred in late August, early September. He said he accompanied his mother to see Dr Likos about this. He told Dr Likos her heart rate was elevated and that she was not feeling or looking well. Dr Likos checked her heart rate and he thinks Dr Likos said she might have had a fever. He could not remember if Dr Likos prescribed anything. He said a few days after this appointment his mother continued to feel unwell and so he took her back to the doctor. Dr Likos checked her heart rate again and it was worsening. He then described what happened as follows:[52]
[52] Transcript p320
QWhen your mother presented on that occasion do you know what she said to the doctor about her condition.
AI can’t specifically say what she said, but she said she’s in pain, she said she is in pain and not feeling well, in Greek.
QWhat did the doctor do.
AHe checked and he just said “it’s probably a fever, it might go away”.
QDid she say where she was hurting.
ANo I can’t remember that.
QDid he prescribe any medication or investigations.
ANo not at that time, no.
QWhat happened at the end of that consultation.
AI told him there is something wrong, just to give mum an x-ray or something because my father said “don’t come back unless he does something about it”.
QYou told Dr Likos that: What did he say to that.
AHe wrote out the script to go and have x-rays done.
QYou subsequently went with your mother for x-rays.
AYes I took her.
QWhere was that.
AAshford Clinic.
QWhen the x-rays had been completed did you go with your mother back to see Dr Likos.
AThat there I can’t remember if I went back or we went to the hospital for more x-rays. I can’t recall going back. I’m not sure if I did or didn’t.
QWhen you say that you went back to the hospital, which hospital do you mean.
ANo no from Ashford Clinic I am not sure if I went to the Royal Adelaide or not or went to see Dr Likos. I don’t know if I went to see Dr Likos or went to the hospital for further x-rays.
QDo you remember taking your mother to the RAH after the CT scans that were done at Ashford.
AYes. I was the one who took her there yes.
QCan you remember at what point of time after the scans had been completed.
AThat’s what I am not sure, if it was that day or the next day. I am not sure on that. That is a blank to me.
QSo you took your mother to the RAH.
AYes.
QWhat did you understand was the purpose of going there.
AThey need further investigations from the x-rays they receive from Ashford, there’s something wrong there, it needed further investigation.
He said that his mother was admitted to the RAH and shortly thereafter had surgery to remove her gall bladder.
In cross-examination George Athanasiadis said he could not remember his mother having kidney stones either in Adelaide or at Port Pirie.[53] Dr Likos’ notes about Mrs Athanasiadis’ attendances in August/September 2001 were put to George Athanasiadis. He did not recall that, on 30 August 2001, Dr Likos suggested that there be an x-ray of his mother’s back and some further tests. He did not recall going back to see Dr Likos with the x-rays of her back. He did not remember a urine test demonstrating blood in the urine. It was put to him that Dr Likos never said anything about fever at any of the examinations prior to the RAH admission. He disagreed with that. He did not recall Dr Likos telling his mother that she needed a CT scan of the kidney area or Dr Likos saying anything to his mother along the lines that it might be kidney stones again. He didn’t recall discussions about her blood sugar levels or Dr Likos giving her any advice about diet or a discussion about retinopathy. Indeed he said that he did not recall Dr Likos ever saying anything to Mrs Athanasiadis about her diet. He said he might have heard it but he’d forgotten.[54] He did not recall going back to see Dr Likos with his mother to discuss the results of the CT scan of the kidney area.
[53] Transcript p414-5
[54] Transcript p378
George Athanasiadis remained adamant that Dr Likos would not have referred his mother to have any tests had it not been for his insistence. He maintained this despite the fact he was most unclear as to precisely what he requested the doctor to do using the words x-ray, ultrasound, test and scan interchangeably with very little apparent understanding of what each of these investigations entailed.[55]
[55] Transcript p355-6
George Athanasiadis did not remember a visit to see Dr Likos on 7 September 2001. He said he did not recall if his mother went back to Dr Likos after the X-rays or if someone at the Ashford Hospital suggested going to the RAH after the tests. He did not recall discussions about a CT scan or Dr Likos saying that his mother’s kidneys were OK but that there might be a problem with her gall bladder. Nor did he recall Mrs Athanasiadis saying she had started getting pain in her right upper abdomen two days before the consultation. Further he did not recall Dr Likos preparing a letter for his mother to take to the RAH.[56]
[56] Transcript p380-1
George Athanasiadis agreed that he took his mother to the RAH emergency department where she was admitted. He agreed that he acted as interpreter but he could not recall anything that happened during his mother’s time in the emergency department or following her admission to Hospital. Despite recognising his signature on various RAH documents this did not refresh his memory. He could not remember speaking to Dr Worthley at the RAH.[57] He could not remember the details of her treatment or the occasions on which she was admitted to hospital after the first admission.[58]
[57] Transcript p402-8
[58] Transcript p348
John Athanasiadis
John Athanasiadis is the plaintiff’s eldest son. He told the court that his mother looked after his son just before the birth of his daughter in around May 1997. He said that his mother at this stage had arthritis which seemed to get worse and worse over the years. He described her condition in around May 1997 as:[59]
her back was playing up, her wrists were playing up and sometimes – as I recall, which is not too accurate right the way back to then, just general all over pain just aches, general all over pain.
[59] Transcript p427
He said that every time he visited her in 1998 he was aware that she was in pain. He recalled her complaining about pain in her back and both wrists. In mid-1999 he described that she was having trouble sleeping because of her pain and in 2000 he noted that she was always in some sort of pain. He said that his memory of these events was very poor because he had a lot of problems himself during those years. He said he should have been more observant of his mother’s condition.[60] He did not visit her in hospital and had only a limited recall of the last few months of her life.
[60] Transcript p436
He recalled his mother having kidney stones at some point but could not remember when that was. He did not give evidence of her ever complaining of pain in the abdomen.
Ahileas Athanasiadis
Ahileas Athanasiadis is the plaintiff’s youngest son. He is known as Archie. He lived with his mother and father off and on during the years 1997 to 2001. In examination-in-chief he said his mother had stomach pain and arthritis after the move to Adelaide in 1997. In 1998 he asked her where it hurt and she indicated across the top of her abdomen radiating around to the back. He said that this continued in 1999 saying that she was in pain all the time in the same area. He said he observed her sitting upright rather than going to bed because it made her feel better. He said that his mother was always tired, was always in pain and was always experiencing pain beneath the ribs bilaterally to the back. When he spoke to her about it she would say it was old age and arthritis.
He was not aware of the precise nature of the surgery that she had in September 2001. He did not know that she had her gall bladder removed. He thought she just had gall stones cut out. He said he hardly ever saw her after this as she was always in hospital and that he only saw her at home three or four times afterwards. He did not visit her in hospital.
In cross examination Mr Archie Athanasiadis became somewhat belligerent and unhelpful. He denied that he was angry or upset with Dr Likos despite considering that he had failed to diagnose his mother’s cancer. When pressed on this topic he claimed not to understand what was meant by the word “anger”. He was most unclear when asked about his memories of his mother indicating the site of her pain. He said that she had all over pain but maintained that she also indicated pain in the back moving around to the front – in the area of the upper abdomen. When pressed as to the time at which he first recalled her demonstrating this he said he could not recall a year as it was a fair while ago.[61]
[61] Transcript p470
He described an occasion when he came home and saw that his parents and George were upset because Mrs Athanasiadis had just been to Dr Likos and had been told there was nothing wrong with her. His said that his father told George to take her back again. When this topic was explored further he became very angry and upset. The court adjourned for lunch. On resuming cross examination Mr Archie Athanasiadis gave his evidence in a very unusual and somewhat truculent manner. He answered a great many questions saying that he could not recall or could not remember. The manner in which he provided those answers suggested a desire to be unhelpful rather than a failure of memory.
The gist of his evidence was that for as long as he could remember his mother had been in pain all over her body but also that she had indicated to him that she had constant pain in the upper abdomen on both sides radiating to the back. The time at which this symptom was first described to him is unclear. At one stage he suggested it was 1997, at another stage he suggested it was from 1998 and then he said he could not recall but that it was a long time ago.
What does Dr Likos say about the reported symptoms?
Dr Likos said that Ms Athanasiadis consulted his practice from early 1997 and that his written records document all of his attendances and those of another medical practitioner in his practice Dr Psevdos. He said that the notes he made in his records were made at the time of each consultation and were an accurate reflection of what took place.
It appears common ground that Dr Likos had a good relationship with Mrs Athanasiadis. He did not recall her ever being reticent about her symptoms or complaints. She attended at his surgery on a regular basis generally in company with her husband, the plaintiff who was also his patient She attended on 26 occasions in 1997, 29 occasions in 1998, 19 occasions in 1999 and 14 occasions in 2000.
When Mrs Athanasiadis first consulted Dr Likos on 21 January 1997 she was complaining of right loin pain. She told him that she had two previous episodes of similar pain whilst living in Port Pirie; the first some six years earlier and the second some three years earlier. She had tests in Port Pirie but no cause had been found for this pain. Dr Likos also noted that Mrs Athanasiadis had diabetes managed by diet and medication in the form of tablets. Dr Likos arranged a urine test which demonstrated some blood in the urine. He then referred Mrs Athanasiadis for an Intravenous Pyelogram (IVP). When she returned the following day with the results of the IVP this revealed a calculus producing obstruction of the right ureter. Put colloquially – a kidney stone. She was not in pain when she saw him that day but Dr Likos was concerned at her insulin levels. He arranged for her to go to the RAH. He thought that she may warrant a hospital admission to stabilise her insulin levels and to make sure that her renal problems were fully resolved.
Mrs Athanasiadis saw Dr Likos again the next day, reporting that she had been to the hospital but she was not kept in. She said she was sore but less so. He prescribed some medication to assist her with passing the kidney stone. Dr Likos also gave evidence about a letter from the RAH emergency department that described her as a febrile and pain free. The emergency department had referred Mrs Athanasiadis to the RAH urology outpatients for review the following week.
When Dr Likos saw Mrs Athanasiadis a few days later, on 5 February 1997, she told him that she was “back to normal”. One month later she told him that she was “ok” and that “the stone had fallen out”.
She was also monitored for her kidney stone condition at the RAH. The hospital notes are consistent with Dr Likos’ notes: namely a diagnosis of renal colic and recovery once the kidney stone had passed.
Dr Likos continued to see Mrs Athanasiadis primarily to monitor her diabetes condition, cholesterol levels and blood pressure. He gave her advice as to diet because she was resistant to insulin injections. He referred her to the RAH for diabetes advice and podiatry appointments. From time to time he saw her for conditions such as bronchitis and respiratory infections.
In May 1998, she complained of right wrist pain for a period of four days which was diagnosed as a mild right carpal tunnel condition.
In September 1998, she consulted another doctor at Dr Likos’ practice, Dr Psevdos. Dr Likos said that Dr Psevdos was a female doctor who worked at his practice for about two years. Mrs Athanasiadis complained to Dr Psevdos about neck pain which responded to Panamax and heat treatment. In December 1998, she complained to Dr Psevdos of intermittent low back pain sometimes radiating to the left calf. Dr Psevdos noted it was “not a major problem” and diagnosed a degenerative lumbar spine. Dr Psevdos also thought Mrs Athanasiadis may have had early sciatica. Later the same month, Mrs Athanasiadis returned to Dr Psevdos complaining of back pain and “all over body parasthesiae relieved with Paracetamol”. Dr Psevdos noted that she had a long standing history of back pain with arthritic changes. This history was not apparent from Mrs Athanasiadis’ medical notes with Dr Likos which do not record any prior complaints of back pain in the time that Dr Likos had been treating her with the exception of the loin pain associated with the kidney stone in 1997. In any event, Dr Psevdos sent Mrs Athanasiadis for x-rays. These were reviewed on 11 January 1999 by Dr Psevdos and demonstrated osteoarthritic changes in the lumbar spine and a condition of diffuse idiopathic skeletal hyperostosis (DISH).
Dr Likos saw Mrs Athanasiadis on 13 January 1999. He also advised her about the conditions demonstrated on the X-rays. Those were osteoarthritis of the facet joints in the lumbar spine and DISH which Dr Likos described as a degenerative condition of the spine which can cause fluctuating spinal pain and can affect other joints in the body.[62]
[62] Transcript p544
From time to time thereafter, Mrs Athanasiadis would complain of pain in various parts of her body. She complained of joint pains in February 1999, right arm pain in April 1999, arthritic pain in September 1999, neck and back pain in July 2000 and rheumatic pain in October 2000. On each occasion her pain responded to anti inflammatory medication.
Mrs Athanasiadis attended Dr Likos complaining of back pain on 1 May 2001. On 30 May 2001 she said that the back pain was worse. She described the pain as being in the lower part of the spine which Dr Likos demonstrated as being above and below belt level. He examined her by palpating the back area which was tender in the lumbar area. He then asked her to bend forward, sideways and backward. This showed that there was a general restriction of movement in the lower back of about 10%. He recommended thermal pads and anti-inflammatory medication for this condition. He also checked her blood pressure and she complained that her blood sugar levels were elevated so he switched her diabetic medication in order to get better control.
Dr Likos said that from the time he first saw Mrs Athanasiadis in January 1997 up to and including this appointment on 30 May 2001 she had never complained to him of abdominal pains just beneath the rib cage on both sides extending to the back nor of pain on the right hand side of the chest just beneath the breast extending around the back. He further said that if such complaint had been made he would have made a note of it.[63]
[63] Transcript p555
Dr Likos saw Mrs Athanasiadis on 19 June 2001 and 26 June 2001 for monitoring of her blood pressure and blood sugar levels.
On 30 July 2001, Mrs Athanasiadis complained of joint pain in her arms and legs. He considered that this may be the result of her previously diagnosed DISH condition.
In August 2001, Dr Likos gave evidence that Mrs Athanasiadis’ son George was concerned about a recent increase in her heart rate. He could not recall if George attended the consultation or if this was the history that was provided by Mrs Athanasiadis. In any event, Dr Likos said he asked Mrs Athanasiadis if she had any other symptoms. She said that she felt okay except for bad back pain. Dr Likos conducted an examination by palpating her back and checking her range of movement. He documented that she was tender over the lumbosacral region but that her range of movement was good. He said that the area of tenderness was the same as he described on the previous occasion in May but extending a little lower. He also took her blood pressure, checked her heart rate and lungs. The heart rate was slightly elevated. Dr Likos said that he then formulated an in investigation plan to find out why she had an increase in back pain and why her heart rate was slightly elevated. Accordingly he referred her for an x-ray of the lumbar and thoracic spine. He also arranged for a heart rate electrocardiogram (ECG) to monitor for heart problems and planned, depending on the outcome of those investigations, to seek a thyroid function test. He said that these investigations were his idea.[64]
[64] Transcript p560-62
Mrs Athanasiadis returned on 4 September 2001. The x-ray demonstrated severe osteoarthritis of the spine. Dr Likos discussed that with Mrs Athanasiadis and prescribed medication but on starting to test her and gaining some further history he said that a slightly different clinical picture emerged. He checked her blood pressure and performed a urine test. The urine test was positive for blood. He had a conversation with her about that result. On further questioning she told him that she had had two weeks of bilateral loin pain. He indicated that the loins were on both sides above the hips – in effect where the kidneys are. He said that she had never previously complained of bilateral loin pain but that she had complained of right sided loin pain when she first consulted him on 21 January 1997. Dr Likos was concerned that Mrs Athanasiadis may have a recurrence of kidney stones. Accordingly he sent her for a CT scan of the renal area and sent the urine for pathology testing. In the same consultation they also discussed her diabetic control and a specialist’s letter about her diabetic retinopathy.
Dr Likos asked Mrs Athanasiadis to return with the results of the CT scan. She did so on 7 September 2001. The CT scan showed that there was no problem with her kidneys but that there was a lesion in the liver and possibly the gall bladder. On further questioning Mrs Athanasiadis told him that she had experienced right upper quadrant pain since late on 5 September 2001. She did not use the phrase “right upper quadrant” but said that she had pain on the right upper part of her abdomen. She said that it fluctuated in intensity and had been particularly bad the evening before, namely, 6 September 2001. On examination he noted that she was still quite tender in that region. Her temperature, lungs and blood pressure were normal. Dr Likos gave evidence that he was very concerned at this stage that she may have either a cancer in the liver or gall stones. Given his concern about the possible diagnosis, he immediately wrote a letter of referral to the RAH[65] and told Mrs Athanasiadis to go to the hospital for further investigations and possible admission for treatment. Mrs Athanasiadis was admitted to the RAH the same day.
[65] Exhibit P4, p26
What do the RAH notes record?
The RAH notes were tendered by consent.[66] These are, in effect, an independent record of events. These notes document Mrs Athanasiadis’ attendances at the RAH in 1997 related to a kidney stone. Dr Likos’ letter of referral dated 22 January 1997 is on file and reads as follows:[67]
Please admit this lady she has had (R) renal pain since Saturday associated with anorexia, nausea and lethargy. She is also diabetic and has been unable to take her tablets. Today’s BSL was over 20!! IVP confirms (R) sided obstruction. Please admit for treatment. Pain has been controlled with Capadex to date.
[66] Exhibit P4
[67] Exhibit P4, p2
The RAH records indicated that she was seen in the emergency department on 22 January 1997 and the diagnosis of renal colic with a partial right kidney obstruction was given. She was seen by the urology registrar but not admitted to hospital. She was given an appointment with urology outpatients. She had two attendances in that department – one on 29 January 1997 and the second on 5 March 1997. On both appointments she said that she was in no pain. On the second she said that the stone had passed.
There are a number of further outpatient records related to Mrs Athanasiadis being referred by Dr Likos from time to time for podiatry treatment and for assistance with her diabetes condition.
The emergency record of the RAH dated 7 September 2001 describes Mrs Athanasiadis’ presenting complaint as right upper quadrant pain for two days and the history of her presenting complaint as 10 years painful mid and lower back, two weeks of worsening mid back pain and:[68]
gradual worsening of right upper quadrant pain coming from back ever present, waxes and wanes, worse with moving and lying, better sitting or staying still, poor sleep overnight, doubling up at times, worse also with coughing.
[68] Exhibit P4, p19
The doctor who saw Mrs Athanasiadis in the Emergency Department took a similar history with the assistance of George Athanasiadis noting long standing back pain with an increase in upper back pain over the last few weeks and three days of pain in the right upper quadrant worse with movement and inspiration[69].
[69] Exhibit P4, p26
The RAH separation summary dated 19 September 2001[70] refers to the presenting complaint as being a 12 month history of episodic or right upper quadrant pain with an increase in pain over the preceding three days. This appears to reflect a summary in the hospital notes prepared on 11 September 2001.[71] The basis for that summary is not entirely clear as previous notes refer to only three days of right upper quadrant pain.
[70] Exhibit P4, p23
[71] Exhibit P4, p30
Findings - what symptoms were reported to Dr Likos and when?
I accept Dr Likos’ evidence that Mrs Athanasiadis did not complain to him of any symptoms suggestive of gall stones until the consultation on 7 September 2001 when she told him that she had suffered right upper quadrant pain from 5 September 2001. Dr Likos’ evidence is internally consistent and consistent with his clinical notes, the investigations that he arranged for and the treatment he provided. It is further consistent with the notes of the RAH taken at the time of admission, albeit it is not consistent with the separation summary.
I also accept that the notes of Dr Likos accurately reflect the complaints made to him by Mrs Athanasiadis and the treatment that he provided. Mr Mann was critical of Dr Likos’ notes saying that some were illegible and that:[72]
Moreover, the notes are skimpy and do not detail complaints on many occasions; they fail to set out a range of possible diagnoses which might lead to lines of investigation. It is therefore possible that the patient’s complaints were brushed aside and not recorded.
[72] Exhibit P1, p4
This latter proposition is, of course, what the plaintiff contends to be the case.
I accept the evidence of Dr Joyner that the notes were reasonable in the context of a frequent consulting pattern as they document the date of each visit and the reason for each visit. The notes were not “overly extensive” but he said he would not criticise Dr Likos for this as he was making notes for himself in the context of a long term relationship and were a “fairly precise summation of the history”. [73] This view accords with my own view of Dr Likos’ notes. Whilst more detailed notes may have been preferable with the benefit of hindsight I have been given no cause to doubt that they are in any way inaccurate or incomplete. Sometimes the note was brief dealing with management of an ongoing condition such as the diabetes. Sometimes the note was more detailed documenting new or significant complaints. This latter situation is well illustrated by the notes relating to the kidney stone in 1997 and the notes on 4 September 2007 leading to the diagnosis of gall bladder disease. In any event, brief or even inadequate notes do not of themselves prove the plaintiff’s case that complaints were made and ignored by Dr Likos.
[73] Transcript p757-60
So what is the evidence supporting the plaintiff’s case that Mrs Athanasiadis complained of symptoms to Dr Likos that he ignored and did not document? In my view the evidence falls far short of discharging the plaintiff’s evidential onus on this topic.
The evidence of Mr Athanasiadis and his sons was not consistent as to what complaints were made and when. None of them has given evidence of Mrs Athanasiadis suffering the classical symptoms of gall stones described by the doctors. Also, there are some matters that they did not give evidence about that one might have expected them to have observed. For example, neither the plaintiff nor his sons gave evidence of Mrs Athanasiadis suffering any significant increase in pain in the 3 days prior to her admission to hospital with a bad attack of pain the night before the admission as documented in both Dr Likos’ notes and the notes of the RAH.
Further, the plaintiff and his sons Archie and George denied knowing about Mrs Athanasiadis suffering from right loin pain and being successfully treated for a kidney stone in early 1997. John Athanasiadis recalled his mother having a kidney stone at some stage but could not recall when that was.[74] This was a relatively significant condition which one might have thought that the family would recall given that it involved attendances upon Dr Likos, diagnostic tests and attendances at the RAH emergency and outpatients departments. It is my view that it is more likely than not any symptoms of pain reported by Mrs Athanasiadis in early 1997 to her family were referable to her kidney stone. These symptoms were documented by both Dr Likos and the RAH. Her recovery from the kidney stone condition to a pain free state was also documented.
[74] Transcript p443
John Athanasiadis described his mother as suffering back and wrist pain from time to time. He did not describe any abdominal pain. This evidence is generally consistent with the Dr Likos’ evidence and notes.
On one view of their evidence, the plaintiff, his sons George and Archie suggest that Mrs Athanasiadis had pain all over her body including in her stomach area from 1997 until 2001. They further appear to suggest that this pain was either constant or gradually worsening. This is not at all consistent with symptomatic gall stones as described by the doctors. The medical evidence was overwhelmingly that such a report of symptoms would not cause a reasonably prudent medical practitioner to investigate a patient for gall stones.
The evidence of more specific complaints of symptoms in the abdominal region was confusing and conflicting.
George Athanasiadis indicated that his mother first indicated pain all around her body, by placing both hands in middle of her abdomen underneath her breasts moving both hands around her back in late 1998 when she saw Dr Psevdos. He said that she first demonstrated this when she saw Dr Likos probably in early 1999. Neither Dr Psevdos nor Dr Likos have documented this complaint. Dr Likos denied that such a complaint was made. The plaintiff did not describe Mrs Athanasiadis complaining of symptoms in the manner described by George. I do not accept that this occurred. Even if it did Professor Jamieson[75] and Dr Joyner[76] said that this report of symptoms would not cause a doctor to investigate a patient for gall stones. Professor Jamieson said that if the pain were bilateral he would arrange for an x-ray of the lumbar spine because such pain even in the region of the abdomen was suggestive of nerve root pain emanating from the back.[77]
[75] Transcript p712
[76] Transcript p735
[77] Transcript p717
Archie Athanasiadis’ evidence was not entirely clear he appeared to be indicating that his mother was constantly in pain. This is less consistent with gall stones given the fluctuating nature of symptoms described by the doctors. The time at which he says she complained of symptoms is most unclear. I was unconvinced by his evidence and I reject it. Even if I did accept his evidence he did not give evidence that complaints were ever made to Dr Likos. The only occasion on which Archie Athanasiadis gave evidence of accompanying his mother to see Dr Likos was in about mid-February 1997 when she complained of pain but he could not recall whether she told Dr Likos she was in pain.[78] I note in this context that February 1997 was the period when Mrs Athanasiadis was recovering from the kidney stone episode.
[78] Transcript p454
The plaintiff suggested at one stage of his evidence that his wife indicated that she had pain in the right upper area of her abdomen by placing her hands on his body about 12 to 18 months before her death. He then amended this to 8 to 10 months before her death. He said that the pain was the same for one or two months before she went to hospital in September 2001.[79] Whilst I accept that Mrs Athanasiadis may have placed her hands on the plaintiff’s body as he indicated I have no confidence in his evidence of the timing of this given the inconsistencies in the plaintiff’s evidence particularly as to dates. It could have happened as he first said 12 to 18 months before her death, or as he later said 8 to 10 months before her death. It could equally have been in September 2001, 3 months before her death when I find she first complained of pain in that area to Dr Likos.
[79] Transcript p124
The evidence of the plaintiff, taken at its highest, suggested that Dr Likos should have commenced investigating the possibility of gall stones about 12 to 18 months prior to his wife’s death. The evidence of George Athanasiadis taken at its highest is that abdominal symptoms were reported to Dr Likos in early 1999 less than 3 years prior to his mother’s death. Even had Mrs Athanasiadis been diagnosed with gall stones at either of those two stages, and her gall bladder removed, the probability is that her cancer was by that stage incurable.
Accordingly even if I were to accept a proposition that Dr Likos should have diagnosed gall stones prior to September 2001, which I do not, the plaintiff has failed to establish on the balance of probabilities that it is likely that Mrs Athanasiadis’ death by gall bladder cancer could have been avoided.
Nervous shock
Before I leave the topic of liability I will deal with the plaintiff’s claim for nervous shock. Sorrow is not compensable in the absence of a psychiatric illness.[80] The defendant says that the plaintiff has sustained no more than grief which is not compensable other than by way of solatium. The plaintiff contends that he suffers a psychiatric illness in the form of a chronic adjustment disorder with mixed anxiety and depressed mood which was compensable. Both parties called psychiatric evidence in support of their position – the plaintiff relied on Dr Raeside and the defendant on Dr Watson.
[80] Jaensch v Coffey (1984) 155 CLR 549; Pham v Lawson (1997) 68 SASR 124
Dr Raeside said that the difference between an adjustment disorder such as he diagnosed in this case and bereavement is a matter of degree. Dr Raeside gave a description of what constitutes a psychiatric disorder in his evidence as follows:[81]
Many people, people without psychiatric illness will suffer psychiatric symptoms from time to time. We can have times in which we feel depressed or sad, other times in which we can feel anxious. But they don’t constitute a psychiatric disorder if they are fleeting, that is they don’t persist or they don’t cause any impairment in our social or occupational functioning. So one of the key things for all psychiatric disorders, they must impair your functioning significantly and for a sufficient period of time. So that’s the first step. Then obviously the types of psychiatric disorders vary and there are a number of adjustment disorders. And the term ‘adjustment disorder’ usually, well does refer to the way in which a person responds to a specific stress, and it could be with a variety of symptoms or even behaviours. And in this case the term refers to depressive and anxiety symptoms secondary to a significant stress, which in this case would be the loss of his wife. The distinction that has to be made then is this a normal expected human reaction to loss or is it atypical and complicated in one way.”
[81] Transcript p213 - 4
Dr Raeside then went on to explain why, in his view; Mr Athanasiadis’ reaction was atypical. This was further set out in his report dated 22 May 2009 which was tendered in evidence.[82] The history that Dr Raeside relied upon in reaching his opinion is set out at pages 7 and 8 of his report. Mr Athanasiadis denied many aspects of that history in his evidence such as difficulty sleeping, bad dreams, anxiety and anger. Dr Raeside agreed in cross examination that doubts over history would raise doubts over diagnosis.
[82] Exhibit P3
Dr Raeside considered that it was essential to demonstrate impairment in order to establish a psychiatric diagnosis. Dr Watson gave similar evidence that impairment attributable to psychological symptoms was an essential part of the diagnosis. A difficulty in assessing impairment on the part of the plaintiff is the fact that he has a pre-existing impairment attributable to his vision impairment. It is necessary to isolate any impairment that is attributable to psychological symptoms from that attributable to his vision. Dr Raeside considered that, on the basis of the history he was provided, Mr Athanasiadis was impaired by his psychological condition. He highlighted issues such as his inability to socialise with people at his church and the fact that the plaintiff said he stayed at home and did not go out. The evidence of the plaintiff and his son George did not however establish that this was the case. In effect they gave evidence that the plaintiff went to church as he did when his wife was alive, that he was able to participate and socialise with the assistance of other churchgoers; that he went out with his son to shop and to have meals. Dr Raeside agreed that if this was correct this suggested the plaintiff did not have any impairment and thus no psychiatric disorder.[83]
[83] Transcript p234-5
Dr Watson did not see Mr Athanasiadis – his opinion was formed on the basis of the material he was provided including Dr Raeside’s report. He did not agree that it was appropriate to diagnose an adjustment disorder in this case. His opinion was that the matters raised by Dr Raeside in his report could be described as grief or the product of grief. When the differences between the history provided to Dr Raeside and the plaintiff’s evidence about his symptoms and activities were put to Dr Watson he said that this reinforced his view that the more appropriate description of the plaintiff’s condition was grief.
It does not appear from his evidence that the plaintiff has ever received any psychiatric treatment or been referred for anything other than a medico legal assessment of this issue. Whilst this does not necessarily mean that he does not have a psychiatric disorder it is surprising that no evidence was called to explain why this was.
Further, the plaintiff did not call his current general practitioner, Dr Zervos, to give evidence. Dr Zervos has treated him before and after his wife’s death. He was likely to be in a good position to give evidence about his observations of the plaintiff’s psychological condition before and after his wife’s death. No explanation has been proffered for the failure to call someone who might have been expected to give highly relevant evidence on this topic.[84] In the circumstances I consider that it is reasonable to assume that the evidence of Dr Zervos would not have assisted the plaintiff.[85]
[84] See transcript p802 of Dr Watson and transcript p248-9 of Dr Raeside.
[85] Jones v Dunkel (1959) 101 CLR 298
Having considered the evidence it is my view that whilst the plaintiff suffered grief as a result of the terminal illness and death of his wife, he has not established on the balance of probabilities that he is suffering from a psychiatric illness. That being the case, even if the plaintiff had established negligence on the part of Dr Likos I do not consider that he would be entitled to damages for nervous shock.
Quantum
The evidence produced by the plaintiff on the topic of quantum generally was considerably deficient. For example, on the dependency claim, there was very limited information about the plaintiff’s income before and after his wife’s death and the expenses incurred before and after his wife’s death. This is information one would have thought would be readily available to the plaintiff to call. In effect the plaintiff invited the court to engage in guess work without any adequate foundation. Likewise there was a claim for funeral expenses and no evidence whatsoever on that topic other than there was a funeral and that George Athanasiadis had left a blank cheque with some family friends in order to pay for the funeral.
A court is obliged to use its best endeavours to assess damages even if there are deficiencies in the evidence and generally I would proceed to assess damages notwithstanding my finding of liability against the plaintiff. In the present case given the nature of my findings and given the difficulties in properly assessing damages in view of the paucity of evidence it seems to me that there is no utility to proceeding with an assessment of damages. I will however make some observations about some aspects of the plaintiff’s claims.
Survival of Causes of Action Act 1940
The Survival of Causes of Action claim was problematic because it was not properly pleaded. The lack of clarity in the pleadings was raised by defence counsel at the outset of the hearing and counsel for the plaintiff made reference to Wilson v McLeay[86] damages. What was put in the final address by counsel for the plaintiff was at odds with this because the claim was stated to be not only Wilson v McLeay damages but also for gratuitous services rendered to Mrs Athanasiadis by the plaintiff and his sons. The defendant says he has been taken by surprise and I agree. The defendant was deprived of the opportunity to properly cross examine the witnesses on that topic. In any event there was a paucity of evidence in support of this claim generally. Assuming it was appropriate to make an award, any amount awarded could be no more than nominal.
[86] (1961) 106 CLR 523
Claim for Aggravated and Exemplary Damages
Aggravated and exemplary damages were claimed apparently as part of both the wrongful death claim and the nervous shock claim. Exemplary damages are not available under the Survival of Causes of Actions Act.[87] The claim was made on the basis of what were stated to be “aggravating circumstances”. These circumstances were set out in paragraph 10 of the statement of claim. Leaving aside the issue of whether the plaintiff established any of these matters in evidence this claim is in my view misconceived and should be rejected.
[87] Section 3(1)b)
There is a clear distinction at law between aggravated damages and exemplary damages. Put simply, exemplary damages are those awarded over and above the amount required to compensate a plaintiff in order to punish a defendant, to act as a deterrent to others and to mark the court’s disapproval of the defendant’s conduct.[88] Aggravated damages are awarded to compensate a plaintiff for increased mental suffering due to the manner in which the defendant behaved in committing the breach of duty or in their conduct after the breach.[89] This distinction was not apparent in the plaintiff’s pleadings or the manner in which his claim was presented.
[88] Lamb v Cotogno (1987) 164, CLR 1, Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
[89] Carson v John Fairfax & Sons Ltd at 78 see 87 above
Further, a proper basis upon which either claim could be made out was not pleaded or established by the evidence. The alleged aggravating circumstances as pleaded do not raise a suggestion of “conscious wrong doing in contumelious disregard of another’s rights” as is required to found a claim for exemplary or aggravated damages.[90] There was no assertion in the pleadings or any evidence that any such wrongdoing increased the suffering of the plaintiff as is required for aggravated damages.
[90] Whitfield v De Lauret & Co. Ltd. (1923) CLR 71 at 77 per Knox CJ
The claim for aggravated or exemplary damages appears at one with the accusations of Medibank fraud that the plaintiff levelled at Dr Likos in the course of his evidence. These may have been an understandable outburst on the part of a distressed man. What is less understandable is the manner in which these claims were persisted with and, in effect, adopted in his counsel’s final address. Allegations of this nature are extremely serious and should not be made in the absence of cogent proof. In this case the allegations were in my view completely unfounded and should have been retracted.
Costs as to discontinuance
The litigation commenced in the Magistrates Court in 2004. The second third and fourth plaintiff required leave to discontinue the proceedings.[91] Leave was given on Thursday 18 March 2010. The question of costs of the discontinuance was reserved. The general rule is that, unless the Court otherwise orders, the discontinuing party must pay costs until the date of delivery of the Notice of Discontinuance.[92] Where multiple plaintiffs are jointly pursuing causes of action in the one proceeding the appropriate course is to take one of joint and several liability.[93]
[91] Rule 52.01
[92] Rule 52.03
[93] Dwyer v Canningvale (2) [2005] SASC 145
I will hear the parties further as to the question of costs.
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