| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BOEHM -v- DELEUIL & ANOR [2005] WADC 55 CORAM : COMMISSIONER STAVRIANOU HEARD : 7-11 FEBRUARY 2005 DELIVERED : 30 MARCH 2005 FILE NO/S : CIV 1175 of 2003 BETWEEN : BRENTON BOEHM Plaintiff
AND
GREGORY PIERRE DELEUIL
First Defendant
STANLEY NEVILLE JACOB
Second Defendant
Catchwords: Negligence - Medical negligence - Failure to adequately examine - Failure to refer for investigation - Failure to refer for specialist consultation - Failure to advise - Causation - Whether plaintiff guilty of contributory negligence
Legislation: Nil
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Result:
Judgment for the plaintiff Representation:
Counsel:
Plaintiff : Mr M H Zilko SC & Mr D I Connor
First Defendant : Mr P D Quinlan
Second Defendant : Mr P D Quinlan
Solicitors:
Plaintiff : Hoffmans
First Defendant : Clayton Utz
Second Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Bennett v Minister of Community Welfare (1992) 176 CLR 409
Breen v Williams (1995) 186 CLR 71
Chappel v Hart (1998) 195 CLR 232
Maloney v Commissioner of Railways (NSW) 18 ALR 147
Naxakis v Western General Hospital (1998) 197 CLR 269
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Western Australia v Watson (1990) WAR 248
Case(s) also cited:
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Locher & Anor v Turner, unreported; QCA; BC9505744; 21 April 1995
Locher & Anor v Turner (1995) A Tort Rep 81336
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, 18 ALR 147
O'Shea v Sullivan (1994) A Tort Rep 81272
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sellars v Adelaide Petroleum (1994) 179 CLR 332
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Shire of Brookton v Water Corporation & Ors [2003] WASCA 240
Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] AC 871
Tame v New South Wales (2002) 211 CLR 317
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1 COMMISSIONER STAVRIANOU: The plaintiff is aged 52 years having been born on 12 February 1953.
2 The defendants are medical practitioners each with many years experience in general practice. In two separate appointments in 2001 in which the plaintiff attended upon them, the defendants diagnosed a lesion (lump) on the back of the plaintiff's leg as a lipoma. A lipoma is a commonly encountered benign lesion. Tragically, the lesion was subsequently found to be a malignant tumour requiring the total amputation of the plaintiff's left leg above the knee. 3 It was accepted that the lesion was a malignant fibrous histiocytoma. This is a lesion, which belongs to a group known as soft tissue sarcomas, which are malignant tumours. Unless removed they will invade neighbouring tissues and metastasise to other parts of the body, which in the case of sarcomas is usually via the blood system rather than the lymphatic system. 4 The plaintiff seeks to recover damages from each defendant arising out of his consultations upon them. The quantum of damages is agreed and I am only required to determine liability.
The pleadings 5 The particulars of negligence are that each defendant was negligent in that he should have: (1) examined the lump; (2) palpated the lump; (3) considered as part of their differential diagnosis that the lump may not have been a lipoma; (4) ordered ultrasound testing of the lump; (5) ordered biopsy of the lump; (6) advised the plaintiff to consult a medical practitioner if the lump grew; (7) referred the plaintiff for specialist consultation. 6 The case of each defendant:
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(d) alleged that the plaintiff was guilty of contributory negligence in that he: 7 There are a number of aspects to the defendant's case. First, it was contended that the diagnosis of lipoma was reasonable (albeit a misdiagnosis). Secondly, in the exercise of reasonable care it was unnecessary for there to be a referral of the plaintiff for an ultrasound, a biopsy, or a specialist consultation. It was stressed in submissions that this was particularly the case in the context of the defendants' practice as general practitioners where lipomas were frequently encountered. Thirdly, that each defendant had advised the plaintiff to return if the lump grew or changed in any way.
The plaintiff's evidence 8 The plaintiff told me that for about two years prior to April 2001 he regularly attended a gym with his wife. On one such occasion in mid-April 2001, the plaintiff's wife noticed a small lump behind his left knee. When they returned home she expressed concern about the lesion. She then examined it. In her view it was a very hard rigid mass and one centimetre in diameter. She suggested the plaintiff attend upon his general practitioner, the first defendant. 9 It is common ground that on 21 April 2001, the plaintiff consulted the first defendant at his surgery. The first defendant syringed the plaintiff's ears and provided a prescription for asthma medication. The plaintiff then asked about the lump behind his knee. The plaintiff's evidence was that he told the first defendant that his wife was very concerned about the lump. The plaintiff told me that he was standing up when the first defendant examined the lump. 10 The plaintiff told me the first defendant looked at the lump for between three to five seconds and had touched it with his fingers. He did
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not feel the first defendant press, roll or squeeze the lump. When the first defendant touched it he said almost immediately that it was a fat ball. The plaintiff said the lump was not measured and he was not asked how long the lump had been there, whether it had changed in size or was painful. The first defendant told the plaintiff that it was best left alone and that it may grow bigger. The first defendant said it should only be removed if it got too large and thereby caused difficulty with walking. The plaintiff said he was not told to return to have the lump reviewed. After the consultation the plaintiff felt relieved and reassured. 11 When the plaintiff arrived home on 21 April 2001 he discussed the first defendant's opinion with his wife. Because of her urging the plaintiff returned to the first defendant's surgery on 19 May 2001. The first defendant was on leave and therefore the plaintiff saw the second defendant. The plaintiff said that he told the second defendant that he needed a second opinion in relation to the lump and that the first defendant had diagnosed it as a fat ball but his wife was concerned about it. The second defendant then examined the lump for between eight to ten seconds. The plaintiff said that the second defendant touched the lump and told him it was a fat ball and was nothing to worry about. The plaintiff told the second defendant that his wife was a registered nurse and she would like a biopsy and further investigations arranged. The second defendant told him they were not required. The plaintiff told me that the second defendant said that the lump could grow but that it was best left alone. The second defendant gave the plaintiff a note to show to his wife which had the words "lipoma – (benign) fat ball" written on it. 12 The plaintiff said that the second defendant did not say anything about returning for further treatment. If either the first or second defendant had done so he would have returned. The plaintiff told me that in April 2001 the lump was a hard rigid mass. 13 When the plaintiff returned after his consultation upon the second defendant he showed the note to his wife. She was angry that further investigations had not been arranged. The lump remained an issue for the plaintiff. In July 2001 he raised the lump with a doctor at a dinner party. 14 The plaintiff said that in August 2001 he holidayed in Sydney with his wife. At that time his wife noticed that the lump had got bigger. It was then about four to five centimetres in diameter. The plaintiff told me that it was only in August that he noticed the lump had increased in size. In May, June and July the lump had grown a little bigger but this did not concern the plaintiff as he had been told that it was common for lumps to
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grow. When the plaintiff returned to Perth in early September 2001 he decided to see a Dr Robert Wolman, a general medical practitioner. 15 On 13 September 2001 the plaintiff attended upon Dr Wolman who examined the lump and that day excised it. On 17 September 2001 the plaintiff returned to see Dr Wolman who told him it was an aggressive and malignant tumour and referred him to see Professor David Woods. Investigations then took place and eventually on 6 November 2001 the plaintiff's left leg above the knee was amputated. The plaintiff said that after his admission for the amputation he had a number of infections, which required hospitalisation in November 2001 and December 2001. 16 The plaintiff said that he could vividly recall the consultations of 21 April 2001 and 19 May 2001. His evidence was that he was reassured and relaxed after having received the advice of the first and second defendants in relation to the lump. He had known and consulted the first defendant for 17 years. 17 The plaintiff's evidence as to the lump was that it was a hard and rigid mass when it was first noticed. It was then one centimetre in diameter. The lump was not painful and not tender to the touch. It did not as far as he could recall change other than in its size. It did not change between 21 April 2001 and 19 May 2001. He was unable to give clear evidence as to the precise location of the lump other than that it was behind the knee. He was not told by the first or second defendant to return if there was any change.
Other evidence 18 Gillian Anne Boehm is the plaintiff's wife. She is a registered nurse employed as a home carer. She said that she had examined lumps on patients on a number of occasions and made referrals to general practitioners. 19 Mrs Boehm gave evidence that she noticed a small lump on the back of the plaintiff's left leg in April 2001. She described its location as being slightly medial. She felt the lump and described it as being hard, one centimetre in diameter and two to three millimetres in height but below the skin. She was quite concerned about it. When told by the plaintiff of the first defendant's opinion and advice Mrs Boehm became annoyed. This was because of her belief that all lumps should be investigated. She therefore urged the plaintiff to have a further examination and suggested he attend upon the first defendant's locum tenens, the second defendant. After the plaintiff showed his wife the note from the second defendant she
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again became annoyed and went and saw the second defendant. Mrs Boehm attended upon the second defendant on 21 May 2001 in relation to a problem with her knee. At that consultation she told him she thought further investigation should be undertaken and that the lump felt hard. The second defendant did not agree that further investigations were warranted and the consultation then ended reasonably abruptly. Mrs Boehm described in her evidence that the second defendant had dismissed her. 20 In August 2001 Mrs Boehm noticed the plaintiff's lump was three to four centimetres in width. The lump was hard and was located to the medial side of the back of the left knee. She told me that she had not seen a lipoma before she examined the lump behind the plaintiff's knee. In her view the lump was attached. She has seen one lipoma since and in her view it felt completely different. It was soft and could be moved around. 21 Robert Wolman is a specialist physician who has worked in general practice since 1994. On 13 September 2001 the plaintiff consulted Dr Wolman in relation to the lump on the back of his left leg. At that stage the plaintiff told him that his wife was not happy with the diagnosis that the lump was just a lipoma. 22 Dr Wolman examined the lump and found that it was hard and about 5.5 centimetres in diameter. It was in his view so big that it was occupying the whole fossa. The lump would not transilluminate and whilst it was mobile from side to side it would not move up and down. The movement suggested to Dr Wolman that the lump was attached to underlying tissues. The overall examination suggested that there was a high probability that it was a malignant lesion. It was arranged that the plaintiff would return to have the lesion excised at a later appointment on 13 September 2001. 23 The plaintiff attended the further appointment on 13 September 2001. Dr Wolman excised the lump together with some surrounding adipose tissue. The lump and tissue were sent for pathological review, which found that the lump was a malignant fibrous histiocytoma and that the adipose tissue was also malignant. Dr Wolman then telephoned the plaintiff and arranged for him to be reviewed at Sir Charles Gairdner Hospital.
Plaintiff's expert evidence 24 Allan Rodger is a radiation oncologist and gave evidence on behalf of the plaintiff. He obtained his primary specialist qualification in 1981.
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He is currently the medical director of the Beatson Oncology Centre in Glasgow. He has an impressive academic, clinical and publishing curriculum vitae. He is from his training and experience familiar with the management of patients with soft tissue sarcomas. 25 He described the characteristics of a lipoma as being that they are generally soft. In contrast a soft tissue sarcoma would generally be firmer and possibly even hard and it would be very unusual for it to be soft. A soft tissue sarcoma cannot be indented with the fingers and will feel firm. Even at one centimetre a sarcoma would not in his opinion feel like a lipoma. If the lesion was firm it was unlikely to be a lipoma and further investigation was warranted. He did not agree with the view of Mr Richard Beaver, orthopaedic surgeon, that because the palpable part of the lesion was only one centimetre in diameter, it would be difficult to differentiate from overlying fat and nearby muscle and from a lipoma. 26 Professor Rodger told me that a lipoma could be moved from side to side. He did, however, note that a lipoma is never truly mobile in the sense that it cannot be moved from its place of origin. A sarcoma may be mobile as a structure under the skin but it tends because of its malignancy to be less mobile than a benign structure. Professor Rodger's evidence was that he had examined in excess of 100 sarcomas and none of them had been soft. He did not expect it to feel like a lipoma even at one centimetre. His experience was that it was rare to find sarcomas purely and simply one centimetre in diameter. Tumours may present differently when they have been excised and are being examined as specimens in a laboratory. 27 Professor Rodger told me that if the lesion was hard and immobile in April and May then considerable suspicion would have been raised that there was a malignant condition. In his view further investigations either by ultrasound or biopsy were then necessary. 28 In his substance of evidence dated 16 June 2004 the following appears:
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else. The size might suggest a lipoma but the consistency or degree of firmness should not. Other lesions occur there other than rare sarcomas eg, cysts. The return of the patient within a month with the same concerns ought to have raised consideration of further action. An ultrasound of the area could have been easily arranged. It would have shown some detail. It could have shown this was solid and not liquid-filled ie, not a cyst. It would have defined if there was any tethering to deep, non-fatty structures such as vessels or nerves. Such tethering would be unlikely with a lipoma and more likely with a sarcoma. A core biopsy under ultrasound guidance by a radiologist familiar with such techniques would have given the diagnosis. However, for best care in these situations the biopsy site is best planned by the surgeon who will remove the lesion suspected of being a sarcoma. I am, therefore, always of the opinion that suspicion that the lesion is malignant should lead to early specialist referral before any biopsy. …." 29 Professor Rodger was examined in detail in relation to the location of the lesion and the effect of fatty tissue. The following exchange took place in cross-examination: "If a tumour is, a small tumour in particular, is surrounded by fatty tissue, it's more likely to have an appearance which is softer than if it's found in one of the harder tissues?---Actually because it's in - fat is very soft. Fat, as has been suggested for the lipomas, is very soft when you feel it, either through the skin or when you open up the skin and see it and press it is very soft and something - a tumour growing in that, such as one of these sarcomas, would be actually firmer. So you disagree with the comment made, and this is at page 3 of the book in Dr Beaver's report, and this is in the third full paragraph, the second sentence: 'Because the palpable part was one centimetre in diameter, this is itself would be difficult to differentiate from overlying fat and nearby muscle –'
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and then his conclusion in paragraph 1: 'The small palpable component or if the tumour was only one centimetre in diameter would have been difficult to differentiate from a lipoma?' ---I don't agree with that. Because this particular tumour, even when it was excised, was surrounded by fatty tissues. The specimens were mostly fat, weren't they?---No, my understanding of the operation that was carried out, I think it was in September when it was removed, and correct me if I'm wrong, but I understand that what was the visible lump which looked different was removed and then there were two adjacent pieces of fat removed and those bits of fatty tissue were predominantly fatty, but there was tumour cells invading into that structure and strands, but there was still a lump of tumour. Yes, and there was a large amount of fatty tissue around the site of the tumour?---Yes, there was. Well, I don't know if there was a large amount. There was fatty tissue around it. I understand there were three specimens - - - Yes?--- - - - and one of them was the tumour bulk and that was only part of the tumour as it turned out, as shown by subsequent operations, and two pieces of fatty tissue which by chance microscopically showed strands of malignant cells in it. Yes, but if you look at page 30 of the booklet do you agree with the summary that is given by Dr Heenan - you were asked to comment on his report before - that the specimens, both specimens - this is the last sentence of that page - therefore consisted largely of fat?---My reading of that is the two pieces, the remaining two pieces consisted largely of fat. Yes?---Because that sentence a bit before, that's my understanding: 'The previous excision specimen report dated 17 September was described as irregularly, lobulated tissue in three pieces, the largest measuring 5.5 by 4. The remaining two pieces were described as adipose fat tissue measuring 3.5 by 3 by 1. Both specimens therefore consisted largely of fat.'
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Now, I'm interpreting that the two other bits were the fatty tissue and that the lobulated mass was in fact - - - We can perhaps ask Dr Heenan about this, but if you look at the full paragraph it's referring to the re-excision specimen of 24 October and then the previous excision specimen 17 September which, as you say, had three pieces?---That's right. That's the one I've been talking about. His conclusion is that both specimens, 24 October and 17 September, consisted largely of fat?---That may be the case, but my interpretation is it relates to the previous sentence. But there was clearly in the area where this tumour was a large amount of fat?---There was fat there, yes. And an amount of fat that one could expect, for example, a lipoma to grow?---There's no description of - a lipoma will grow in fat. There's no description of a lipoma in those specimens. No, no. The reason I'm asking you this question is because you posit in one of your reports - I take it you never examined Mr Boehm in writing your reports?---No. And you posit in one of your reports and then you later state that you had no statistical basis for suggesting it, but that a lipoma might be less likely to appear in the popliteal fossa because of the absence of fatty tissue?---And there's less fatty tissue there, and just on probabilities where there's more fat you are more likely to find a lipoma. That was the only reason I suggested that. The actual evidence of the specimens taken suggest that there was an ample amount of fat in the area where this tumour was?---You would say ample; I would say there was fat, but it depends how you want to describe ample. … Prof Rodger, when we finished for lunch I had asked you about the references to fatty tissue. Another feature of malignant fibrous histiocytomas - and I take it that malignant fibrous histiocytoma is a subgroup of soft tissues sarcomas but within
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that subgroup, particularly malignant fibrous histiocytomas, can have different features?---Yes. Different structures depending on the kind of cells that are being produced?---That's correct, and their proportions. And what proportions. Am I right in thinking that the fact that it is called a fibrous histiocytoma is because the malignant cells come from fibroblasts and they also, on occasion, exhibit features of histiocytes?---I think it's fair to say that it is not exactly clear what the malignant fibrous histiocytoma arise - in days gone by there was a simpler classification of sarcomas and they would probably have been subsumed mostly into the fibrous sarcomas but in fact one of the - the paper I'm talking about - I published - I think it was number 24 there - we actually had two pathologists, one in particular, Catherine McLaren who has a very considerable reputation in the UK as a pathologist looking at sarcomas and she looked at our entire series in Edinburgh. We had the details of them - their sizes, what treatment and how well they survived - and she and her young colleague looked at all the pathology to reclassify in the new system. She found that some of the fibrous sarcomas were reclassified as different kinds of sarcomas. Some would be malignant fibrous histiocytomas and some of the new - those called malignant fibrous histiocytomas - have come from the other types of sarcoma. That's because pathology has changed over the years - not only in an understanding of the simple microscopy but also the ability to use special stains, particularly those that use an immunological chemical system for staining and you can get different types. Now of course, they will sometimes do genetic-type staining for them. So the MFH - as it's called in general - the malignant fibrous histiocytoma has perhaps changed, as all of the sarcomas have with better technologies. One of the things or one of the variants of the way in which the cells in this kind of tumour can behave, is an overproduction of mucin?---Correct, yes. And that's a - I don't know if chemical is the right word - but it's the chief ingredient of mucous?---Yes, its a sort of gooey material.
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And would the presence of mucin in a tumour potentially give rise to a softer appearance in parts of the tumour?---Not necessarily. But it may well do?---Well, it might do. It depends on the tension in the tissues and how much there is. For instance, you can get mucin secreting carcinoma of the breast and it's characterised by these lakes of mucin but in fact the lumps can feel extremely hard like a cyst, so that doesn't necessarily follow that I'm afraid. But the production of mucin in a part of a tumour - and it may even be the only palpable part - may, as you have said, present with a gooey appearance?---When it's cut in the fresh specimen you can sometimes see - depending on the size of the accretions, you can sometimes see a bit of goo coming out. In the staining process, when it's fixed and so on, you see no cells in the areas but, as I said, if there are intense loculations, like small cysts, very intense, they can actually quite firm - it's not possible to say that just because it's gooey, it's going to be a soft tumour. I'm not saying it's necessarily the case but the presence of that overproduction of mucin may be something which exhibits, in parts of the tumour, as a soft aspect of the tumour?---That's possible. The name which is given to that kind of characteristic of a tumour where there is an overproduction of mucin is a mixoid change isn't it?---It can be, yes. And, at least the first pathology report in this case indicated that there were areas - this is in the pathology report in September after Dr Wolman has operated, this is page 60 of that large book - if the witness could be shown exhibit 1, sir?---Sorry did you say page 60? Page 60, in the top right-hand corner. The reference to, for example, there being - and I realise this is in relation to a tumour which is of considerably larger size than the tumour in April and May, but in the microscopic examination, showed areas of mixoid change?---Yes.
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And that's a reference to the kind of cells which are overproducing mucin?---It can be, yes." 30 Professor Rodger told me that a differential diagnosis arises when a practitioner after taking a history and carrying out an examination prepares a list of possible diagnoses. In his view the main thing to know was that if the lesion was hard and fixed and not as mobile as it should be in the particular situation then it was a potentially malignant tumour. He did not expect a general practitioner to make a diagnosis of malignant fibrous histocytoma but expected them to be alert to the possibility, to have an index of suspicion and to act accordingly. 31 Professor Rodger told me that in taking a history from a patient who presents with a lump it is necessary to obtain information as to how long it had been there, any changes and what it felt like. Pain was not a highly useful predictor of malignancy. Whilst it can be associated with any sarcoma or carcinoma it was often a late event. 32 In relation to examination Professor Rodger was of the view that a sarcoma would not transilluminate. Transillumination involves shining light from a small torch through a lesion in an attempt to determine its characteristics. In his view transillumination would have been difficult because of the size of the lesion. He would not use it to confirm a diagnosis of lipoma. Ultrasound was in his view more effective. He would try to measure the size of the lump accurately. He was of the view that an accurate record of findings should be made. 33 Professor Rodger told me that if the lump was hard in September 2001 then in April/May it would be hard or firm certainly at that time as well. 34 Professor Rodger gave evidence that sarcomas are rare and a general practitioner may never see one in his or her career. Professor Rodger told me that if a lump has all the clinical features of a lipoma on examination then the diagnosis could be made and only reassurance and watching to see what happened was required. It would not need to be sent off for confirmation in each case. 35 Professor Rodger told me that earlier diagnosis would have revealed a small tumour and one that could be excised with adequate margins and amputation would have been avoided. When the diagnosis is made earlier the risk of metastasis is reduced and the prognosis is improved.
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36 Richard Crane is a specialist general surgeon He is a fellow of the Royal College of Surgeons and a fellow of the Royal Australasian College of Surgeons. He has considerable experience in the care of patients with benign and malignant tumours.
37 Mr Crane told me that if the lump was firm in September 2001 it would probably have been firm in April. In relation to examination Mr Crane was of the view that transillumination would have been difficult because of the size of the lesion. 38 Mr Crane said that if the lump was hard or firm and relatively immobile then the examining practitioner should then have had a high index of suspicion. The hardness of the lump was an important clinical feature. Where there is such a high index of suspicion Mr Crane considered that further investigations were required. Specifically an ultrasound should have been done as the next step in the investigation process. If a biopsy had been performed then the true diagnosis would have been revealed. 39 Mr Crane said that when any doctor sees a lump for the first time it is wise to keep it under observation and arrange for the patient to return within a month of the initial examination. This was because the diagnosis, which could be made, was only provisional. 40 Mr Crane had never diagnosed a malignant fibrous histiocytoma in his years of practice and gave evidence that it was not a very frequently encountered tumour. He had however examined sarcomas and in his view all sarcomas were similar. In cross-examination he agreed that a diagnosis could be made that a lump was benign purely on clinical examination. However, he stressed that further observation and follow up examination was required. This would be the situation if the lump was soft and it was a first time examination. 41 Mr Crane told me that if the lump was firm in September 2001 when Dr Wolman had seen it, it probably would have been firm in April 2001. 42 Mr Crane was of the opinion the plaintiff's lesion probably warranted further investigation when first seen. Size is not necessarily relevant as malignant lesions can start as a small tumour. Generally malignant tumours are not as mobile as benign tumours. 43 Mr Crane explained that lumps appearing in a popliteal fossa present a variety of different diagnoses. The possibilities would be a Baker's cyst, semi-membranosis bursa, popliteal aneurysm, lipoma, sebaceous cyst, and
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soft tissue sarcoma (including malignant fibrous histiocytoma). Lumps do have differing clinical signs but in his view where there is some doubt about the clinical features an ultrasound examination would have clarified the diagnosis and would certainly have differentiated the suggested diagnosis of a lipoma from the correct diagnosis of a malignant fibrous histiocytoma. The findings on ultrasound examination that the lesion was not a simple lipoma would then have prompted the medical advisors to arrange an ultrasound guided biopsy to the core of the lesion. This would have enabled a tissue diagnosis to be made which would have indicated at that time the correct diagnosis. 44 In Mr Crane's view if the diagnosis of malignant fibrous histiocytoma had been made in April, when it was much smaller, there would have been an excellent chance of the tumour being removed without the need for an amputation.
The evidence of the defendants
45 The first defendant was 67 years of age at trial. He qualified as a Bachelor of Medicine and Bachelor of Surgery from the University of Western Australia in 1963. He then worked in hospitals until 1965 when he commenced general practice in New South Wales. In 1975 he commenced practice in Western Australia and has practiced from the same rooms for 30 years. 46 The first defendant told me that in the course of practice over 40 years he was regularly called upon to diagnose subcutaneous lumps or lesions. He would see between 10 to 20 patients a year with lipomas. The particular features of a lump under the skin, which he considered when making a diagnosis, were its size, consistency and its effect upon the colour of the skin, its shape and attachment and whether it was painful. 47 He was asked about the method used in relation to diagnosis of lesions and he said: "Can I ask you before going to the appointment with Mr Boehm to just ask you to comment on your own experience in relation to certain kinds of conditions. In the course of your practice over that 40 years has it been a regular occurrence that you've been called upon to diagnose subcutaneous lumps or lesions that a person has?---Yes.
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Could you estimate how many per year that you would see?---It's difficult to say. I suppose, I don't know, 10 to 20, but you might see several on one person, so you might see 10 to 20 people a year and they might have several or they might have one. Is there any particular distribution or size that you tend to find a lump that you're presented with, distribution on the body or size?---No, I couldn't give you any – no, I can't tell you. I don't know. In relation to those lumps – we've heard a lot of evidence in relation to lipomas – how many lipomas a year would you see?---I suppose how many patients with lipomas is probably a better question. Yes?---It would be 10 to 20. In relation to the diagnosis of a lipoma are there particular matters – the diagnosis of a lump – can you tell his Honour if there are in your experience and in your diagnosis – what are the particulars features that you look for in diagnosing a condition which you're presented with which is a lump under the skin?---Under the skin. Size obviously. Whether it does anything to the skin, discolours it or does anything else to the skin, the surface of the skin. Its consistency. By consistency what do you mean?---Whether it's soft or hard or irregular. Shape and attachment, and whether it causes the patient pain when you touch it or when you examine it. If you can just, going through each of those, when you're faced with a lump what are the various possible diagnoses that you would consider as part of the examination of the patient?---I suppose the first one is whether the lump is painful and whether there is any inflammation and if it's not painful and there's no inflammation you can discount a subcutaneous abscess or a boil or something that's badly inflamed. Then once that can be discounted you sort of work out – well, whether it is and in relationship to what. Then get an idea of its size, get an idea of its shape and then get an idea of its texture I suppose, whether it's hard, whether it's soft or whether parts are hard and parts are soft.
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What does that tell you in your analysis of the symptoms you're presented with?---If it's hard or it's irregular you worry that it may be a malignancy. If it's soft it probably isn't a malignancy. I don't think I've ever felt a soft malignancy. Whether it's irregular is important, whether there's soft parts and hard parts, and then attachment above to the skin, whether there has been any change in the skin by the lesion and whether it's attached below itself. What does attachment suggest to you?---That maybe that's a bit of a concern because it may be attached because of inflammation, it may be attached because of scarring or it may be attached because of malignant spread. You've given approximations and obviously they're approximations of the number of persons who present to you each year with such lumps. How often would you see or would you examine a lump that has one of those features that you describe as being of concern?---Perhaps once or twice a year. In those occasions what are the kinds of features of concern that you yourself have experience in?---Hardness and the irregularity is one and – they're the most ones, hardness and irregularity, irregular shape or irregular in terms of hardness; some parts are hard and some parts are soft. That's best probably demonstrated in the case of breast tumours which can vary in texture, size and hardness. You say you would find one to two of those per year?---Not breast lumps now? No, no, of a lump in any - - -?---Any lump that concerns me? Yes?---And anywhere in the body too. What step do you take if that occurs or if you have that finding?---I suppose there are three – there are two steps. I would either send for an ultrasound myself or refer it straight on to a surgeon." 48 The first defendant gave evidence that he had seen the plaintiff for a number of years prior to the consultation on 21 April 2001. He had treated the plaintiff over the years for a variety of conditions. The first
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defendant also had a professional relationship with the plaintiff's wife in her capacity as a Silver Chain nurse. 49 The first defendant gave a very detailed description of the appointment on 21 April 2001. He told me how the plaintiff had told him that he needed an ear syringe because his ears were blocked. The first defendant gave detailed evidence as to the course of the examination and syringing of the ears. The first defendant then examined the lump behind the left knee. The first defendant told me that in the course of examining the lump he asked the plaintiff how long the lump had been there and whether it caused pain and whether there had been any change. He was told that there had been no change and no pain. The plaintiff could not say how long it had been there. 50 The examination of the plaintiff's lump took place initially with the plaintiff standing in front of the first defendant and then with him kneeling on a small chair. 51 The first defendant described the examination in his evidence as follows: "You say you were able to feel. Just tell his Honour what you did in relation to the lump once his leg was on the chair?---On the chair. I felt it with – I examined it with one hand, my right hand, and I felt it for size and hardness and fluctuance, whether it was hard or soft or whether it was fluctuant, whether there was fluid, and whether it was hot, which it wasn't. They're the sort of things that I did, but you do them sort of instinctively. Then once I had worked out it was hard - sorry, it was - it wasn't related to the hamstrings, it was fairly reasonably round and it was regular in sort of texture and then I pushed the skin above and below it - above it, felt it, and pushed it against underlying tissues and it didn't appear to be attached. In terms of – you said – you may not have said. In relation to the consistency of it or the feel of it?---The feel of it, yes, it felt consistently soft throughout. What was the size of the lump?---It was about a centimetre in diameter. I measured it by estimate, by using my two index fingers. You didn't use a ruler?---No, I didn't.
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You put your two index fingers - - -?---Two index fingers together and pressed against the lump and judged the distance between. Having conducted that examination what did you conclude or consider it to be?---Well, I though it was a lipoma. That was the sort of end conclusion. You sort of run through and discard very rapidly other things like whether it was a cyst or whether - - - What were you able to discard and why were you able to discard them?---Discarded some sort of abscess. I discarded - - - If you can just stop with each of those. Why were you able to discard an abscess?---It wasn't painful and it wasn't hot. A cyst; it didn't – it was softer than a firm cyst and it wasn't particularly fluctuant, so I discarded a cyst, which may have been in relation to the hamstrings area, and because it was regular in texture and there didn't appear to be any hard areas to be worried about anything apart from a lipoma. I came to the conclusion it was a lipoma fairly quickly. That was my opinion at the time. How did it compare to the other lipomas that you had - - -?---Well, similar. Similar. That was the basis - that again was, as well as doing a subconscious discarding of some of the prominent diagnoses that I just mentioned, you also simultaneously arrive at a conclusion as well. What did you say to Mr Boehm about what it was?---What it was. I said that I thought it was a lipoma but I didn't – I just used that term - and that it was a non-cancerous tumour of fatty tissue." 52 He told me that he told the plaintiff to watch the lump very carefully and if there were any problems, if it causes pain or changes in any way to come back. His note of the consultation contained only the following in relation to the lesion: " ….lipoma leg [l]" 53 In cross-examination he disagreed that the lump was firm to hard and that it was rigid and immobile. He said that he knew that firmness in a lump can point towards malignancy. The first defendant was cross-examined in relation to what he said to the plaintiff. He told me that he could not remember using the words "very carefully".
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54 The second defendant is a general medical practitioner who was 78 years of age at trial. He qualified as a medical practitioner in 1963. Between 1967 and 1983 he practiced in general medicine. In 1983 he began work as a locum tenens. In May 2001 he was engaged by the first defendant as a locum. 55 The second defendant gave evidence that in general practice he was regularly required to examine and diagnose subcutaneous lumps or lesions. When examining he would consider the site, size and consistency of the lump. He told me the history to be obtained would be how long the lump had been there and whether it was growing. The characteristics of a lipoma were that it was reasonably soft and it transilluminated light. 56 The second defendant had no specific recollection of the consultation with the plaintiff on 19 May 2001 or of the subsequent attendance by the plaintiff's wife. The second defendant made a contemporaneous note of the attendance upon the plaintiff. The note was extremely brief and was as follows: "L medial side of knee lump. Present ? time. Small lipoma, 1.0cm round." 57 The second defendant's evidence as to his usual practice in relation to examination of lumps was that he would ask how long it had been there. He would then ask if the lump had grown and then examine whether the consistency was soft or hard and whether there had been any pain. His usual advice to patients was "that one must keep an eye on it and if it alters in size or consistency then they should return …" 58 The second defendant disagreed that a firm as opposed to a hard lump warranted further investigation. He told me that what influenced his diagnosis was the consistency of the lesion and transillumination. A high index of suspicion would be raised if the lump were hard and growing rapidly. 59 The second defendant acknowledged that there was always a risk of malignancy in a lump but that other factors needed to be taken into consideration. He considered the rate of growth of the lump to be very important. He was unable to obtain any history from the plaintiff as to how long the lump had been there. He therefore did not know whether it had grown or not.
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60 The second defendant did not accept that he treated the lesion as unimportant because of its size. In terms of diagnosis he told me that he considered a boil, a cyst, a sebaceous cyst, an ordinary cyst, scar tissue and lipoma. He described the possibility of a malignancy as being pretty faint. He said that if a patient had requested a biopsy he would have made a note to that effect.
Defendants' expert evidence 61 Elizabeth Jane Wylie is a specialist radiologist who holds an appointment in the Women's Cancer Prevention Unit. She gave evidence that the used of ultrasound equipment comprised a large part of her practice. In her view an ultrasound examination was a very poor technique for determining whether a tumour was malignant or benign. In cross-examination Dr Wylie accepted that an ultrasound examination could assist a general practitioner to differentiate between a solid and cystic abnormality. She said it had a good specificity for differentiating between solid and cystic. In Dr Wylie's opinion if the ultrasound showed the lump was solid and not fatty it may indicate the need for further investigation. She told me that ultrasound was a very useful modality but that there needed to be awareness of its limitations. 62 Richard J Beaver is an orthopaedic surgeon who obtained his specialist qualifications in 1989. He has specific training in the management of tumours of the musculoskeletal system both overseas and locally. A substantial amount of his practice is the management of bone and soft tissue tumours either benign or malignant. In relation to soft tissue sarcoma or malignant fibrous histiocytoma Mr Beaver told me that over the last 15 years he had probably managed eight or nine of those types of conditions. 63 Mr Beaver told me that a lipoma is soft, mobile, and not attached usually to deep structures. In contrast the malignant fibrous histiocytoma is a solid tumour, which is firmer to palpation. He noted that with a small lesion of one centimetre diameter it would be difficult to be absolutely sure of the consistency of the tumour. Mr Beaver told me that malignancies can be pain free and the absence of pain as in the case of the plaintiff was not unusual. 64 In relation to the examination of a lipoma Mr Beaver said: "In terms of a lump of this kind, Mr Beaver, the first thing one would have to consider if one was trying to make a proper differential diagnosis and not miss those things that one can't
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afford to miss, is whether it's soft or firm, soft or firm to hard. Would that be right?---Well, it is one of the things you would consider. I'm going through them one at a time; so that's one you would have to consider?---Yes. And whether it was tethered to other structures?---Yes. Because that's also a predictor, is it not, of some potential malignancy, if it's immobile?---Yes. And you would ask the patient how long it had been there?---Yes. You would ask the patient whether it had grown?---Exactly. And you would ask the patient whether it had changed in its form or appearance to the patient's knowledge?---Yes." 65 He told me that the most vital aspect is an adequate and comprehensive history of the lump. From his experience with a small lesion with overlying structures it was difficult to determine the exact consistency of it He told me that you could never be sure what the consistency is of a small deeply placed lump. In that situation the most vital aspect is the history. 66 He told me that assuming an adequate history had been taken beforehand an adequate physical examination would not take more than five minutes. He said an examination of a suspicious lesion, which took 15 seconds or less, would be inadequate. Transillumination would not be of assistance because of the location of the lesion and its size. 67 He provided a report dated 19 October 2004 in which he opined that in the absence of pain and a history of enlargement or dysfunction of the knee it would be reasonable to diagnose the plaintiff's lesion as benign. In his view it would have been difficult to differentiate the tumour from a lipoma. 68 Max Kamien is an Emeritus Professor of General Practice at the University of Western Australia and an honorary senior research fellow with the University. He was foundation Professor of General Practice at the University when that chair was established in 1977 and held the chair until 2003. He has been in clinical general practice since 1977.
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69 Professor Kamien told me that in his years of general practice that he had never knowingly seen a malignant fibrous histiocytoma. He told me that as a general practitioner a patient would present with a "lump or a lump in every session that you do".
70 Professor Kamien's evidence was that the most commonly encountered subcutaneous lump was a lipoma. The feel of a lipoma upon examination was relatively soft. He told me that he would advise patients to keep the lipoma under observation and if there was any change to return. Relevant changes were in shape or whether it was causing any discomfort. 71 Professor Kamien provided a report dated 12 July 2004 in which he described the task of a general medical practitioner as follows: "The task of a general practitioner is not to make a diagnosis of every rare condition which is presented to him or her. The general practitioner's task is to ask 'what is the most likely cause of this disorder?' and 'what are the serious things I must not miss?' and its corollary 'what are the things that are commonly missed?' " 72 Peter John Heenan is a consultant dermatopathologist who gave evidence on behalf of the defendants. He produced reports dated 12 November 2003 and 22 July 2004. 73 In his report of 12 November 2003 he explained that: "Malignant fibrous histiocytomas (malignant tumours of soft tissue) collectively represent the most common type of sarcoma in patients over the age of forty. The overall incidence among adults, however, is only approximately 1-2 cases per 100,000 patients …" 74 Mr Heenan observed that the clinical presentation of a small lump, apparently not attached to the skin or deeper tissues was consistent with a benign diagnosis. In his view the clinical diagnosis of malignant fibrous histiocytoma was difficult as shown by the fact that most of the tumours are greater than 5 centimetres in diameter at the time of diagnosis. 75 Mr Heenan's opinion was that some malignant fibrous histiocytomas were soft to palpation. He told me this was mainly because they frequently involve fat, which in itself is very soft. He told me that in a tumour itself the cells often produce an excess of connective tissue mucin
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thereby imparting an appearance that's called myxoid which refers to excess accumulation of mucous which gave a very soft consistency. Mr Heenan referred to the pathology report of the 17 September 2001 obtained in relation to the lesion following its excision and noted the reference to myxoid changes. 76 In his view it was relevant to diagnosis to consider whether the lesion was tethered to other structures or was in the subcutaneous tissues. 77 Mr Heenan told me that if the lesion was hard it is certainly a feature that is associated with malignant tumours but that some benign tumours are hard also. If it was a feature associated with malignancy then it warranted further investigation. 78 Mr Heenan told me that with no history from the patient as to how long the lesion had been present and how quickly it had grown the appropriate course of treatment would be a follow up over a period of time, alternatively a biopsy or specialist referral. 79 Mr Heenan had never felt a sarcoma in a patient and his experience was based upon the laboratory examination of specimens. 80 Michael John Byrne is a specialist oncologist and has been the head of the Department of Medical Oncology at the Sir Charles Gairdner since 1973. 81 Mr Byrne provided a report dated 11 January 2005 in which he makes the following observations: "A. Experienced general practitioners, in the course of their usual practice, are likely to see 10 - 20 new subcutaneous lipomas per year. Most general practitioners would not see a new case of malignant fibrous histiocytoma in their entire professional career. In a more general sense a small soft nodule in the subcutaneous tissues is vastly more likely to be a benign lesion rather than malignant. Therefore, given the clinical findings, the initial diagnosis made by Dr Deleuil was entirely reasonable. Having made that diagnosis his decision to not biopsy the mass was appropriate.
B. Dr Jacob saw the lesion one month later. There was no evidence of growth and no change in the clinical
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character of the mass. Dr Jacob's diagnosis was entirely reasonable. C. I understand that the patient was asked to return if the mass increased in size. However, the growth between May 19th and September 14th was from 1 cm diameter to 5 cm in diameter. This is an increase in volume of over 100 fold. This suggests that the patient may not have heeded the advice given. In answer to your specific questions: 1. At 1 cm in diameter a malignant fibrous histiocytoma may well appear similar clinically to a lipoma. Most of these tumours are not diagnosed until they are 5 cm in diameter. This may relate to the deep seated location of many such tumours. The distribution in one large series was one third each <5cm, 5-10cm and >10cm. Approximately 10-30% of malignant fibrous histiocytomas are superficial in origin and they are usually diagnosed at a smaller size. 2. Both practitioners describe the tumour as having features typical of a lipoma. I am not convinced that it is possible to gain much information from attempting to transilluminate a 1 cm lesion with a clinical torch. But this does not detract from other aspects of clinical examination which were consistent with a benign diagnosis. 3. As a tumour at 1 cm in diameter has a volume of approximately 0.5 cc and one at 5 cm diameter has a volume of 65 cc I believe an earlier diagnosis would have been of potential benefit. There is a relationship between tumour size and prognosis for malignant fibrous histiocytoma. Whether an amputation could have been avoided with a diagnosis in April or May 2001 would depend on the anatomical location of the tumour. A radical excision may still have been required but this may have been accomplished with a limb sparing procedure. A surgeon with experience in such operations should give an opinion on this point.
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4. The figures you quote are consistent with those in published series but may be somewhat pessimistic. Perhaps the most secure data for soft tissue sarcomas as a group come from the large meta-analysis of trials of adjuvant chemotherapy published in The Lancet in 1997. Overall survival at 10 years was about 50%. Most recurrences of these tumours occur in the first 3 years after surgery. As Mr Boehm is now 3 years out from his surgery with as yet no problem he has passed the time of major risk. I think a figure of 50-60% chance of 10 year survival may now be appropriate. 5. The amputation was undertaken with two aims. Firstly to avoid the major morbidity which would occur with local recurrence of the tumour at the affected site. Secondly to provide the best chance of cure. The pathology reports of the initial excision (13/9/01) and the subsequent wide excision (24/10/01) both indicate that local tumour remained after limited surgery. The finding of residual tumour in the amputated specimen (6/1/01) confirms that local recurrence was inevitable without amputation. A 50-60% chance of 10 year survival is reasonable. It would almost certainly not have been achieved if the tumour recurred locally." 82 Dr Byrne's evidence was that the features of a lipoma and a malignant lesion are similar and it is possible another diagnosis may be overlooked. He told me that when diagnosing a lesion it is important to know whether it is mobile and whether it is soft, firm or hard. If immobile and firm or hard then further investigation is warranted.
Duty of care 83 A medical practitioner is under a duty of care to his patient: Rogers v Whitaker(1992) 175 CLR 479. In Rogers (supra) the court held that the standard to be observed by medical practitioners was not to be determined solely or even primarily by medical practice. It was for the courts to judge what standard should be expected from the medical profession. 84 In Breen v Williams(1995) 186 CLR 71 in their joint judgment Gaudron and McHugh JJ said (at 114):
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"Rogers took away from the medical profession in this country the right to determine, in proceedings for negligence, what amounts to acceptable medical standards." 85 In Rosenberg v Percival (2001) 205 CLR 434 Gummow J (at 453 - 455) said that the structure and sequence of their Honours' reasoning in Rogers(supra) can be understood from the following six passages from the decision: "(i) 'In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.' (ii) '[I]t is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life'. (iii) 'The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.' (iv) 'There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of
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the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.' (v) 'Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.' (Original emphasis). (vi) 'We agree that the facts referred to in F v R (1983) 33 SASR 189 at 192-193 by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.'" (Emphasis added)
Some general findings and observations as to evidence 86 The plaintiff's evidence was given in a concise and straightforward manner. The impression I formed was that he was being honest and truthful in his account of events. He was cross-examined in a careful and considered manner. In the end my view as to the plaintiff's truthfulness and reliability was unaffected by the cross-examination. It is clear from the evidence of the plaintiff and his wife that the lesion was a significant concern to them both. The second defendant's note given to the plaintiff referred to the lesion as being benign. The plaintiff had clearly communicated concern as to the status of the lesion to the second defendant. I accept the plaintiff's wife as a truthful and reliable witness.
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87 The first defendant is a busy general medical practitioner who told me that on average he would see at least 120 patients per week. He had been the plaintiff's general practitioner for many years and he had a professional relationship with the plaintiff's wife. The consultation was brief and there was nothing particularly remarkable about it. He did not turn his mind to what occurred on 21 April 2001 until January 2002 when he received a letter from the plaintiff's solicitors. His note of 21 April 2001 referred relevantly only to a lipoma. There was no notation of history or findings made upon examination yet he gave very detailed evidence of the examination and the conversation with the plaintiff. In cross-examination the first defendant was inconsistent in relation to what he said he told the plaintiff. My impression of his evidence was that he was very much recounting his usual practice rather than what occurred on 21 April 2001. In contrast the consultation was not unremarkable for the plaintiff. His wife had arranged the attendance and after he reported back to her about what had occurred she effectively required him to return to the surgery and obtain a further opinion. It remained an issue in the household during April and May 2001. It was of such concern to the plaintiff's wife that she raised it when she saw the second defendant on 21 May 2001. By September 2001 the lesion was again an issue because it had grown. I generally prefer the evidence of the plaintiff to that of the first defendant. I consider his evidence more reliable as to what occurred at the consultation.
88 The second defendant had no recollection of the consultation of 19 May 2001. 89 It was common ground that each defendant examined the lump behind the plaintiff's knee and diagnosed a lipoma. The examinations by the first and second defendants were of very short duration. Mr Beaver told me in cross-examination that an examination for less than 15 seconds is inadequate. Whilst the length of time of an examination is not determinative in this case the examinations were of such short duration that they could only be described as cursory. In making that finding I am conscious that each defendant had examined many lipomas before the plaintiff's consultation and both are experienced medical practitioners. 90 At each examination the plaintiff did not know how long the lesion had been there and had not noticed any change in the size of it. The plaintiff's wife had noticed the lump some time in early April 2001. Before then the plaintiff did not know of its existence. I accept the plaintiff's evidence that he was not asked by the first defendant how long the lump had been there, whether it had changed in size or was painful.
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As I have said the first defendant made no note of any history or findings upon examination other than that there was a lipoma present. I do not consider that the first defendant as part of the examination took a sufficiently detailed history. The history was inadequate. The history taken by the second defendant included a reference to time. A reasonable interpretation of the notation is that the second defendant could not obtain any history (as was the case) from the plaintiff as to how long the lesion had been there. This was an important part of the history upon which no detail could be obtained. 91 There was a significant body of expert evidence adduced at trial. The witnesses called were all specialists in their particular fields. Each expert was provided with a series of factual assumptions, which formed the basis for the opinions expressed. 92 I accept and prefer the evidence of Professor Rodger. He was an impressive witness. He was eminently qualified and his evidence was clear, cogent and concise. In any event much of what he said was not seriously challenged by the experts called on behalf of the defendants. 93 I accept, based upon the views of Professor Rodger, that a lipoma is soft, mobile, and not attached usually to deep structures. A soft tissue sarcoma cannot be indented with the fingers and will feel firm. Even at one centimetre a sarcoma would not feel like a lipoma. As Mr Crane said the hardness of the lesion was an important clinical feature. If the lesion was firm it was unlikely to be a lipoma and further investigation was warranted. I accept and prefer the evidence of Professor Rodger to that of Mr Beaver in relation to the characteristics (specifically its firmness) of a lesion found in fatty tissue. 94 A lipoma can be moved from side to side. A lipoma is never truly mobile in the sense that it cannot be moved from its place of origin. A sarcoma may be mobile as a structure under the skin but it tends because of its malignancy to be less mobile than a benign structure. In contrast a malignant fibrous histiocytoma is a solid tumour, which is firmer to palpation. The significance of the consistency of the lump is that if it was firm to hard then it should have been referred for investigation. 95 I accept the evidence of Professor Rodger that malignancies can be pain free. Mr Beaver had in his report of 19 October 2004 expressed the view that in the absence of pain and a history of enlargement or dysfunction of the knee it was reasonable to diagnose the lesion as a benign tumour and that a reasonable practitioner would be expected to be
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alerted to the possibility of a malignant tumour only if there was a history of pain or enlargement, or if the palpable tumour mass was more than three centimetres in diameter. The expert evidence establishes that malignant tumours can be small. This was the view of Mr Crane which I accept. Mr Beaver accepted in cross-examination that the absence of pain associated with the tumour as in the case of the plaintiff was not unusual. In the circumstances I do not accept this opinion of Mr Beaver. The most significant presenting symptoms for each defendant should have been how hard the lesion felt and its mobility. 96 In carrying out a reasonable examination the expert evidence establishes that the mobility of the lesion should have been examined.The second defendant admitted that he did not take into account the possibility that the lump may have been malignant. His focus was upon benign conditions. 97 The defendants submit that the diagnosis was reasonable and that the nature of the lump and the clinical indications were such that reasonable care did not require further testing or referral to confirm the diagnosis. I do not accept that submission. I have found that the lesion was firm to hard in April and May 2001. This should have alerted the defendants to the possibility of a malignancy warranting further investigation. In this case the defendants did not act on the basis that the lesion might be malignant. Had they done so appropriate referral or investigation would have disclosed the true nature of the lesion. 98 The consequences of a misdiagnosis were significant. 99 Transillumination would not be of assistance because of the location of the lesion and its size. A detailed history was required to be taken. 100 When the plaintiff saw the defendants the lump was small. The first defendant concluded that the lesion felt consistently soft throughout. I am not satisfied that was the case at that stage. The plaintiff and his wife told me that the lesion was firm to hard at that time. Whilst neither are medical practitioners and had not examined lesions, the evidence of Professor Rodger and Mr Crane which I accept, was that given the lesion was hard in September 2001, in all probability it was hard in April and May 2001. That evidence was not the subject of any contrary expert evidence adduced on behalf of the defendants. The first defendant's position was that the lesion was not hard when he examined it. However, I am not prepared to accept that evidence given the cursory examination carried out. Further, I accept the evidence of the plaintiff as to what the
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lump felt like in April and May 2001 in preference to the evidence of the first defendant in this regard. The first defendant did not assess the lesion as firm to hard requiring further investigation. This was a failure to exercise reasonable care. 101 The first defendant did not precisely measure the size of the lesion. He used his two index fingers to perform the task and made no note as to the size of the lesion. This was imprecise and without the recording of size it was impossible for another practitioner to determine whether there had been any growth in the lesion. 102 It was unreasonable in the circumstances not to approach the examination and diagnosis in a far more cautious manner than undertaken by either defendant. Reasonable care as general practitioners required that each defendant thoroughly examine the lesion and in arriving at a differential diagnosis to consider the possibility that the lesion may not have been a lipoma. A detailed history was required which was not obtained. Reasonable care required the plaintiff to be advised to consult a medical practitioner if the lump grew. 103 The defendants each diagnosed the lesion immediately after the examination. There was no hesitation in concluding the lesion was benign. It is in that context that the factual controversy as to what was said by each of them to the plaintiff must be determined. The plaintiff's evidence as to what was said by the first defendant is consistent with his action in not returning for review in May, June and July when the lesion grew. I accept he would have returned if he had been advised to do so. The view which each defendant had was that the lesion could grow but that it was benign. In that circumstance I do not accept that either defendant would have given advice to the plaintiff to consult a medical practitioner if the lump grew. I prefer the evidence of the plaintiff to that of the first defendant. The evidence from the second defendant was based upon his usual practice. He was seeing the plaintiff for a second opinion. I accept the plaintiff's evidence that what was said to him was that the lesion was best left alone and that it could grow.
Negligence 104 To succeed in a cause of action in negligence the plaintiff must establish the existence of a duty of care, breach of the duty and that damage was caused by the breach. 105 The duty of a medical practitioner in the position of each defendant was to exercise the reasonable care and skill of a general medical
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practitioner. The fact that a wrong diagnosis is made does not establish that there was negligence. The plaintiff's case is not based upon a failure to diagnose the rare tumour in this case. Perfection or the use of increased knowledge or experience embraced in hindsight forms no part of what is reasonable in the circumstances (Maloney v Commissioner of Railways (NSW) 18 ALR 147 at 148 per Barwick CJ). 106 A general practitioner is required to see many patients in the course of practice. There are obviously demands upon time. However, this does not relieve the practitioner of the obligation to exercise reasonable care. I will not repeat my general findings and observations above. 107 The examination conducted by each defendant was of short duration. The first defendant's technique of measurement was imprecise. The second defendant's utilisation of transillumination was, on all the expert evidence, unlikely to be of any assistance. Further, he did not take into account the possibility of malignancy. In his view if a lesion was small and firm no further investigation was warranted. This view was contrary to the expert evidence, which I accept. I am satisfied that each of the examinations was inadequate and that in carrying out the examinations in the way they did there was a breach of duty. The lump was not properly examined and palpated in order to determine whether it was hard or soft. 108 Given the characteristics of the lesion which I have found I am satisfied based upon an acceptance of the evidence of Professor Rodger and Mr Crane that a high index of suspicion should have arisen at that stage in each defendant, which called for further investigation. It was a serious disorder that could not afford to be missed. The plaintiff could not give any relevant history to either defendant. In that circumstance the defendants needed to approach the diagnosis in a far more careful and cautious way than each did. I am satisfied that a proper differential diagnosis was not made by the first defendant. I accept that given the short duration of the examination and diagnosis there was no real opportunity for a differential diagnosis to be properly considered by the first defendant. Further, it should have been abundantly clear to each defendant that the plaintiff had concerns about the lesion. Ultrasound, biopsy and referral were all available and reasonable options in the circumstances. It was a breach of duty in the circumstances not to utilize the available options. 109 I am satisfied a proper examination of the lesion would have revealed it was hard or at least firm and rigid and therefore warranting further investigation. If, because of its location, it was difficult to
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examine then given the grave and serious consequences of misdiagnosis each defendant should have further investigated or referred. In arriving at a differential diagnosis it was necessary for each defendant to consider that the lesion may not have been a lipoma. The possibility even if faint that the lump was malignant should have been included in the differential diagnosis. 110 An ultrasound or a biopsy were available means of confirming the correct diagnosis. 111 The evidence of Professor Rodger and Mr Crane, which I accept, was to the effect that if proper investigations had been carried out in April and May 2001 the true nature of the lesion would have been determined. Those investigations included biopsy and ultrasound examination. If the lesion had been had been so identified in April/May2001 I am satisfied amputation of the plaintiff's left leg would have been avoided. 112 Whilst the plaintiff's evidence was that the lump had not grown between the dates of his consultations upon the defendants he did give evidence that the lump had grown a little bit bigger in May, June and July 2001 but that he was of the opinion that he didn't have to worry about that. I accept and find that the plaintiff would have returned for review if had been advised to do so by either defendant in the event the lump grew. As I have said I am satisfied that if he had so returned in May 2001 the amputation would have been avoided. 113 In my view the defendants breached the duty of care which they owed to the plaintiff. They did not exercise reasonable care. 114 Each defendant put causation in issue. 115 In Bennett v Minister of Community Welfare (1992) 176 CLR 409 Gaudron J expressed the view at 420 - 421: "... although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
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The views of Gaudron J as set out in Bennett (supra) appear to have been accepted by the majority of the High Court in Chappel v Hart (1998) 195 CLR 232. Though in the minority, McHugh J in Chappel (supra) on causation said at 244:
"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." 116 There is causation in fact if the negligence/breach of duty caused or contributed to the injury, and there is sufficient contribution if the connection is not insignificant (Western Australia v Watson(1990) WAR 248). 117 In my opinion the plaintiff has proved that the negligence of the defendants caused him injury. Proper examination would have resulted in further investigation, which would have revealed the true nature of the lesion. Accordingly, each defendant is liable in damages to the plaintiff. 118 In my view the negligence of the defendants is causative of the plaintiff's amputation and resultant disabilities: Chappel (supra); Naxakis v Western General Hospital (1998) 197 CLR 269. 119 Each defendant pleaded and relied upon the alleged contributory negligence of the plaintiff. I am not satisfied that the factual basis for the plea has been made out. In my view there is no basis for the allegation of contributory negligence. The plaintiff's conduct must be judged in light of all the circumstances. The plaintiff had been told that he need not return for advice unless the lesion was painful and interfered with him walking. I accept that evidence. This did not ever occur and there is accordingly no basis for the plea based upon a failure to seek advice. I do not accept that the second defendant told the plaintiff that if the lump grew or changed in consistency, the plaintiff should immediately seek further medical advice. Accordingly, there is no factual basis for the plea. |