Boxell v Peninsula Health

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2016 03982

VICKI BOXELL & ORS (according to the attached schedule)	Plaintiffs
v
PENINSULA HEALTH	Defendant

---

JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7, 8, 12, 13, 14, 15, 18, 19, 20, 21, 22, 26, 27 March 2019
DATE OF JUDGMENT:	17 December 2019
CASE MAY BE CITED AS:	Boxell & Ors v Peninsula Health
MEDIUM NEUTRAL CITATION:	[2019] VSC 830

---

TORTS – Negligence – Medical practitioners – Standard of care for professionals – Diagnosis of aortic dissection – Whether defendant not negligent by operation of s 59(1) Wrongs Act 1958 (Vic) – Competent professional practice – Whether defendant negligent by failing to order a CT aortogram – Wrongs Act 1958 (Vic) ss 48, 49, 58 – Brakoulias v Karunaharan [2012] VSC 272 – Grinham v Tabro Meats Pty Ltd [2012] VSC 491 – Dobler v Halverston (2007) 70 NSWLR 151 – South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 – Sparks v Hobson (2018) 361 ALR 115.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	N Murdoch QC with A Mukherjee	Maurice Blackburn
For the Defendant	R Gillies QC with A Pillay	Minter Ellison

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Provisions and principles................................................................................................................. 2

Breach.............................................................................................................................................. 2
The operation of s 59..................................................................................................................... 4
Competent professional practice................................................................................................ 9
Unreasonable peer professional opinion: s 59(2)................................................................... 13

Background....................................................................................................................................... 14

Witnesses...................................................................................................................................... 15
The Hospital................................................................................................................................. 18
Chest pain..................................................................................................................................... 18
Aortic dissection.......................................................................................................................... 19

The aorta............................................................................................................................. 19
Dissection............................................................................................................................ 20
Demographics.................................................................................................................... 21
Risk factors......................................................................................................................... 21
Genetic predisposition...................................................................................................... 21
Symptoms and signs......................................................................................................... 22
Clinical examination.......................................................................................................... 24
Investigations..................................................................................................................... 24
The diagnostic challenge.................................................................................................. 25

History of attendances and treatment.......................................................................................... 26

19 February 2012......................................................................................................................... 26
Stress echocardiograph.............................................................................................................. 27
6 October 2013............................................................................................................................. 27
Dr Lindley.................................................................................................................................... 29
Dr Harkin and Dr Jackson......................................................................................................... 32
Dr Jackson.................................................................................................................................... 35
Investigations............................................................................................................................... 35
Discharge...................................................................................................................................... 36
Post-discharge.............................................................................................................................. 36
Autopsy........................................................................................................................................ 36

Dr Jackson......................................................................................................................................... 37

Qualifications............................................................................................................................... 37
Chest pain in ED.......................................................................................................................... 37
Aortic dissection.......................................................................................................................... 38
CT aortogram............................................................................................................................... 39
6 October 2013............................................................................................................................. 39
Dr Jackson’s statement to the Coroner..................................................................................... 46

Did the Hospital consider AD as a possible diagnosis?.......................................................... 50

Submissions................................................................................................................................. 50

The defendant.................................................................................................................... 50
The plaintiffs....................................................................................................................... 51

Analysis........................................................................................................................................ 52

Expert evidence................................................................................................................................. 55

Dr Eddey...................................................................................................................................... 55
Associate Professor Raftos......................................................................................................... 57
Dr Vinen....................................................................................................................................... 58
Mr Rosalion.................................................................................................................................. 60
Professor Cameron...................................................................................................................... 61
Professor Mitra............................................................................................................................ 65
Professor Kelly............................................................................................................................. 68
Professor Harper......................................................................................................................... 71
Dr Habersberger.......................................................................................................................... 73

Assessment of the experts.............................................................................................................. 74

Objection to the evidence of Professor Harper and Dr Habersberger................................ 79

Should the Hospital have recognised Mr Boxell’s family history as a risk factor for AD? 83

Is the defendant not negligent because the Hospital acted in a manner widely accepted as competent professional practice in the circumstances?...................................................... 86

Submissions................................................................................................................................. 86

The defendant.................................................................................................................... 86
The plaintiffs....................................................................................................................... 87

Analysis........................................................................................................................................ 88

Did the defendant breach its duty because the Hospital failed to perform a CTA?.......... 92

Submissions................................................................................................................................. 92

Plaintiffs.............................................................................................................................. 92
The defendant.................................................................................................................... 94

Analysis........................................................................................................................................ 95

Conclusion......................................................................................................................................... 99

HIS HONOUR:

Introduction

One morning in October 2013 Ronald Boxell experienced chest pain while he was getting ready for work. He was taken by ambulance to the emergency department at the Frankston Hospital (‘the Hospital’), where he remained for over eight hours for examination, observation and investigation. No cause was found for Mr Boxell’s pain, and he was discharged without a diagnosis. The following day Mr Boxell died at home as a result of acute aortic dissection (‘AD’) causing haemopericardium and cardiac tamponade.

The defendant, Peninsula Health, conducted and managed the Hospital.

AD is an uncommon condition, which requires urgent surgery. It has a very high mortality rate if untreated. The characteristics of AD make diagnosis difficult. CT aortogram (‘CTA’), which is a definitive investigation for AD, was not routinely performed on chest pain patients in hospital emergency departments in 2013.

The defendant conceded that, had a CTA been performed during Mr Boxell’s Hospital attendance, it would have shown evidence of acute AD, and it is likely he would have had urgent surgery and survived.

The plaintiffs are Mr Boxell’s wife, Vicki Boxell, and his children. They allege the defendant was negligent because it failed to consider and exclude AD as a cause of Mr Boxell’s presentation, and failed to perform a CTA. The defendant argues that it considered the possibility of AD, but on the presenting history, physical examination and investigation results, there was no clinical basis for performing a CTA. Further, the defendant alleges that it acted in a manner widely accepted as competent professional practice and therefore was not negligent by reason of s 59 of the Wrongs Act 1958 (Vic) (‘the Act’).

By agreement, liability was the only issue run at trial. If they succeed, the quantum of each plaintiff’s claim remains to be assessed. The key issues to be determined are:

(a) Did Peninsula Health consider AD as a cause of Mr Boxell’s chest pain?

(b) Was Peninsula Health negligent because it failed to perform a CTA to exclude or confirm AD?

(c) Was Peninsula Health not negligent because it acted in a manner widely accepted by a significant number of respected practitioners in the field of emergency medicine as competent professional practice in the circumstances?

Provisions and principles

The existence of a duty is not in dispute.

The defendant conceded causation, though the question of damages remains in dispute.

Breach

Breach is governed by s 48 of the Act. The risk was that a person who presented in the circumstances of Mr Boxell, might suffer harm as a result of failure by the Hospital to consider, and confirm or exclude, a diagnosis of AD. In issue is whether a reasonable person in the position of the Hospital would have taken the precaution of performing a CTA on Mr Boxell in response to the risk of harm. In relation to that question, s 48 provides:

(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.

(3)For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

Breach is to be determined prospectively.

Other principles relevant to breach are set out in s 49:

In a proceeding relating to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

The standard of care which applies is modified by s 58 of the Act, which is the statutory expression of the common law:[1]
[1]Rogers v Whitaker (1992) 175 CLR 479, 487.

Standard of care to be expected of persons holding out as possessing a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to—
(a)what could reasonably be expected of a person possessing that skill; and
(b)the relevant circumstances as at the date of the alleged negligence and not a later date.

The defendant relies on s 59 of the Act:

Standard of care for professionals
(1)A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
(3)The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Peer professional opinion does not have to be universally accepted to be considered widely accepted.
(5)If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reasons for that determination.
(6)Subsection (5) does not apply if a jury determines the matter.

The operation of s 59

The operation of s 59 of the Act has been considered in the Trial Division of this Court by Macaulay J in Brakoulias v Karunaharan (‘Brakoulias’)[2] and J Forrest J in Grinham v Tabro Meats Pty Ltd (‘Grinham’).[3]
[2][2012] VSC 272.
[3][2012] VSC 491.

The comparable New South Wales provision is s 5O of the Civil Liability Act 2002 (NSW):

(1)A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3)The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Peer professional opinion does not have to be universally accepted to be considered widely accepted

Section 5O has been considered by the New South Wales Court of Appeal in Dobler v Halverson (‘Dobler’),[4] Sparks v Hobson (‘Sparks’)[5] and South Western Sydney Local Health District v Gould (‘Gould’).[6]

[4](2007) 70 NSWLR 151.

[5](2018) 361 ALR 115.

[6](2018) 97 NSWLR 513.

In Dobler, Giles JA, with whom Ipp and Basten JJA agreed, identified the question to be determined on appeal in that case:

As I have indicated, the judge held that s 5O operated as a defence. The appellant submitted that the judge was in error in holding that s 5O operated as a defence, and that “the plaintiff bears the onus of proving that the provision of the professional services by a defendant was not widely accepted in Australia by peer professional opinion as competent professional practice”; he submitted that it “define[d] the content of the duty of care owed by [the appellant] to Kurt”.[7]

Resolving that question, his Honour said:
It follows that I do not accept the appellant’s submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section—the plaintiff does not rely on it in order to negate a liability in negligence.[8]

Giles JA then described, with approval, the approach taken by the trial judge to determination of negligence and the operation of s 5O:
The judge approached breach of duty in accordance with the operation of s 5O which I have described. He held that the appellant “fell short of the requisite standard of care”. He then considered whether the appellant nonetheless was not liable because it was established that when he failed to obtain an ECG he acted in a manner widely accepted by peer professional opinion as competent professional practice, and found that it was not.[9]

[7]Dobler 166 [54].

[8]Ibid 167-8 [61].

[9]Ibid 168 [64] (citations omitted).

In Brakoulias, Macaulay J decided, in conformity with Dobler, that s 59 of the Act assumes the continued existence of the common law standard in Rogers v Whitaker,[10] and does not exclusively express the content of the standard of care applicable to claims of negligence against professionals. His Honour said:

The only remaining question is whether it truly operates as a defence, as has been found in New South Wales, or merely provides the defendant an opportunity to meet an evidentiary burden by adducing evidence of peer professional opinion, with the legal burden remaining on the plaintiff to negative it.
In my view, there is no support for the evidentiary burden approach either in the text of the legislation or in any of the extrinsic materials. …[11]

[10](1992) 175 CLR 479, 487.

[11]Brakoulias 13 [53]-[54].

In Grinham, J Forrest J referred with approval to the judgment of Gibbs JA in Dobler, and said the common law standard of care replicated by s 58 of the Act was not to be determined by whether the conduct of the defendant accorded with the practice of medical practitioners in its position, though such evidence may be relevant, and in some cases decisive.[12] His Honour agreed with Macaulay J’s conclusion in Brakoulias that s 59 of the Act must operate as a defence, which he considered was ‘inescapable given the wording of that section’.[13]
[12]Grinham 34 [131]; Dobler 157 [35].
[13]Grinham 36-7 [137].

In Gould, Leeming JA, with whom Basten and Meagher JJA agreed, set out the following propositions in relation to s 5O, which he regarded as uncontroversial:

(1)it is settled that the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a “professional” and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice): Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]–[61] and Sydney South West Area Health Services v MD [2009] NSWCA 343 at [20]–[21], [51] and [58];
(2)it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted;
(3)it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted;
(4)subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence;
(5)if the court considers that the opinion is irrational, then the section does not to that extent apply; and
(6)the test of “irrational” in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion.[14]

[14]Gould 520-1 [30].

The defendant submitted that s 59 of the Act operates to define the applicable standard of care and that to succeed the plaintiffs must prove the Hospital did not act in a manner that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances.

I reject the defendant’s submissions. The standard of care against which the conduct of a defendant possessing a particular skill is assessed is to be determined in accordance with ss 48 and 58 of the Act. The plaintiff bears the onus of establishing the standard of reasonable care which applies in the circumstances, and that the defendant’s conduct fell below that standard.

The effect of s 59(1) is to substitute a standard of competent professional practice for the standard of reasonable care which otherwise applies. The statutory text, ‘A professional is not negligent … if it is established …’ places the onus of proving the elements of the provision on the defendant. That conclusion is consistent with the authorities, and is further confirmed by statutory context.[15]
[15]Dobler [61]; Brakoulias [34]-[35]. Further, contrast the text of s 48(1), ‘A person is not negligent … unless …’, which places the onus on the plaintiff.

A remaining question is whether, consistent with the decisions in Brakoulias, Grinham and Dobler, s 59(1) is considered once breach is established in accordance with ss 48 and 58, or whether the starting point for analysis of breach is s 59(1) where there is evidence of competent professional practice. In Gould, Leeming JA said:

Read in proper context, it may be seen that Dobler was a very precise statement of the operation of s 5O. Only if the preconditions of the section — namely, that the defendant was “practising a profession” and was doing so “in a manner that ... was widely accepted in Australia by peer professional opinion as competent professional practice” — are established does the section apply. The defendant bears the onus of establishing those preconditions, and if they are not established, then ss 5B and 5C are to be applied. However, if the preconditions are established, then the standard of care against which the defendant’s conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational.
In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what Giles JA said at [59]: “then subject to rationality that professional practice sets the standard of care”. That is also what his Honour said at [61]: “Section 5O may end up operating so as to determine the defendant’s standard of care”.
That is what Basten JA and Simpson JA separately suggested in Sparks v Hobson. After reviewing the background to s 5O, Basten JA concluded at [24]:
“[24] ... It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case.”

To similar effect, Simpson JA said at [329]:
“[329] [Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA... It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.”

…
It is true that on occasion there has been separate treatment of breach in accordance first with s 5B and s 5C and then with s 5O (see for example Howe v Fischer [2014] NSWCA 286 at [73]-[78] and Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282 at [139]-[145], both cases where breach was not found to have been established under s 5B). But the weight of authority proceeds on the basis as stated in the Ipp Report, assimilating the standard of care by s 5O once the preconditions of the section have been satisfied. That is the gravamen of the empirical research presented by C Mah, A critical evaluation of the professional practice defence in the Civil Liability Acts (2014) 37(2) University of Western Australia Law Review 74.[16]

While I accept the plaintiffs’ submission that in this case the result will be the same whichever approach is taken, given that it has been raised by evidence and argument, I will consider first whether Peninsula Health has established the preconditions for the operation of s 59(1).

[16]Gould 539-40 [123]-[128].

Competent professional practice

In Sparks, McFarlan JA, referring to his earlier decision in McKenna v Hunter and New England Health District (‘McKenna’),[17] said:
[17][2013] Aust Torts Reports 82-158 (note this decision was overturned by the High Court without considering s 5O: Hunter and New England Local Health District v McKenna (2014) 253 CLR 270).

I then referred to the wide variety of circumstances that were relevant to the reasonableness of the defendant’s conduct in that case, and continued:
165 In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner.

These observations are applicable to the present case, which does not relate (at least so far as the issues of negligence on appeal are concerned) to any particular point of medical practice, such as the use of a particular drug, surgical technique or item of surgical equipment. Rather, as in McKenna, determination of the issue of negligence requires reference to a variety of factual considerations including:
•The significance of an elevated blood carbon dioxide level when oxygen and blood pressure readings were normal to high;
•The urgency of the operation, bearing in mind Mr Hobson’s pre-existing condition;
•The exhaustion of possibilities, short of termination of the operation, for remedying the carbon dioxide problem and its underlying cause, being the compression of blood vessels preventing blood fully perfusing the lungs.

Evidence from a number of witnesses highlighted the unusual nature of the operation. For example, Dr Barratt had never seen this type of surgery performed on a patient with Noonan Syndrome and Dr Forrest described the operation as involving “a very unusual and difficult anaesthetic challenge”. It can be assumed that the particular events that occurred in the course of the operation rendered the situation even more unusual.[18]

[18]Sparks 165-6 [213]-[215].

Relying on what was said by McFarlan JA, the plaintiffs submitted that whether a course of professional conduct is a practice or not lies in whether the ‘determination of the issue of negligence requires reference to a variety of factual considerations’ or ‘to any particular point of medical practice’. It was submitted the former does not constitute a practice, but the latter does. Because determination of the issue of negligence in relation to the treatment of Mr Boxell required reference to a variety of factual circumstances, the course of professional conduct which was involved was not a practice, and s 59(1) was not engaged.

In Sparks, Simpson JA did not agree with the approach adopted by McFarlan JA, but concluded he was bound to accept what was said in McKenna:

I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277]–[279]. But for that constraint, I would have considered that the language of s 5O makes it plain that “competent professional [here, medical] practice” is intended to denote “the practice of a profession [here, medicine]”, and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with “professional practice”, and the use instead of the adjective “competent”, which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.[19]

Basten JA agreed with Simpson JA as to the construction of s 5O, but concluded the Court was not bound by what was said in McKenna:
Although it is uncertain how this reasoning in McKenna will operate in particular cases, there is a risk in reformulating the statutory language. To speak of “a practice” adopted by a group of professional persons suggests a regular course of conduct adopted in particular circumstances. By contrast, the phrase “competent professional practice” is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice.
…
There are other reasons for thinking that the reference to “competent professional practice” does not require evidence of “a practice”. First, it is the “manner” in which the defendant acted which must be the focus of the opinion. Secondly, if it were necessary to establish a practice, one might expect subs (3) to refer to “opinions … concerning that practice”, rather than “opinions … concerning a matter”.[20]

[19]Ibid 187 [332].

[20]Ibid 123 [31]-[32].

Peninsula Health relied on the judgment of Basten JA in Sparks and submitted ‘competent professional practice’ contemplates not just a specific method of performing an activity but is broad enough to capture the response of a professional to a situation which calls for their expertise.

This question was not considered in Brakoulias or Grinham, and was considered, but not resolved, in Gould.[21]
[21]Gould 537-8 [114].

Whether a defendant is negligent involves consideration of the standard of care required in response to the risk of harm. Usually the standard which applies is fixed by what a reasonable person would do in the circumstances.[22] Where a defendant holds themselves out as possessing a particular skill, the standard is modified to what could reasonably be expected of a person possessing that skill.[23] In both cases the content of the standard is resolved by the finder of fact considering all of the evidence and exercising their common sense.[24]
[22]Wrongs Act 1958 (Vic) s 48.
[23]Ibid s 58.
[24]Erickson v Bagley [2015] VSCA 220, 13 [37].

It is then necessary to consider whether the conduct of the defendant satisfied the standard of reasonable care.

Section 59 of the Act was intended to introduce a modification of the Bolam principle,[25] which was stated by Lord Scarman in Sidaway v Governors of Bethlehem Royal Hospital[26] as follows:

The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.[27]

[25]Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587.

[26][1985] AC 871.

[27]Ibid 881.

There are three elements which a defendant must establish to rely on s 59(1). First, that the defendant is a professional. Usually this will not be contentious.

Second, a standard of care, namely competent professional practice in the circumstances. Usually a defendant will call one or more professionals who practice in the field to establish a standard of competent professional practice. It is unlikely to be sufficient that the experts who give evidence themselves subscribe to the standard. The evidence must establish peer professional opinion, that a standard of care is widely accepted by a significant number of respected professionals in the field in Australia as competent professional practice in the circumstances. If established, peer professional opinion determines the standard of care which applies for the purposes of s 59(1) of the Act.

Third, that the defendant acted in a manner which satisfied the standard of competent professional practice. This is a question of fact determined on all of the evidence.

The text of s 59(1) does not speak of ‘a practice’. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense.[28] However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided.[29] In Grinham, J Forrest J referred to the problems of proof inherent in the application of s 59(1).[30] Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence.
[28]Sparks 187 [332] (Simpson JA).
[29]Grinham 53 [190]-[191].
[30]Ibid 52 [187].

Unreasonable peer professional opinion: s 59(2)

The plaintiffs submitted that if it was found the Hospital acted in a manner accepted as competent professional practice, then the peer professional opinion which set that standard of care was unreasonable, and could not be relied on.

Section 59 was part of a suite of changes responding to the Ipp Report[31] introduced to the Act by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic). The qualification in s 59(2), expressed in the Ipp Report as ‘irrational’ rather than ‘unreasonable’, was intended to follow the principles settled by the English House of Lords in Bolitho v City and Hackney Health Authority (‘Bolitho’),[32] and to give a court power to intervene in the very exceptional instance of treatment that is both irrational and in accordance with an opinion widely held by a significant number of respected practitioners in the field.[33]
[31]Law of Negligence Review Panel, Review of the Law of Negligence (Final Report, September 2002) 41 [3.17]-[3.20].
[32][1998] AC 232.
[33]Hucks v Cole [1993] 4 Med. LR 393 was cited as an example.

In Bolitho, Lord Browne-Wilkinson described the qualification in the following way:

The use of these adjectives—responsible, reasonable and respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
...
These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.[34]

[34]Bolitho 241-3.

Commenting on the application of the test of irrationality used in the New South Wales provision, Leeming JA said in Gould:

Text, context and purpose all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is “irrational”, and even more exceptional if the opinion be widely held. To consider a body of opinion to be “irrational” is a stronger conclusion than merely disagreeing with it, or preferring a competing body or peer professional opinion.[35]

[35]Gould 534 [96].

To rely on s 59(2) a plaintiff must establish that the peer professional opinion which determines a standard of competent professional practice cannot withstand logical analysis. It will be a rare case in which it is demonstrated that an opinion held by a significant number of respected practitioners in the field is unreasonable, in the sense that those practitioners have not directed their minds to the comparative risks and benefits of a particular response to the circumstances under consideration, or because the opinion has no logical basis.

Background

Mr Boxell was 47 years old when he died. He was a qualified electrician, and during the 11 years before his death he worked a rotating four day on, four day off, 12-hour shift.

Mr Boxell suffered from hypertension. He smoked about 20–30 cigarettes daily, and consumed alcohol. He had a history of depression and in 2010, following marital disharmony, was an inpatient for a few days in a psychiatric unit, and was treated by a psychologist for a period after discharge. At times he was prescribed medication for depression and hypertension. The last scripts for those medications were issued in October 2011.

Mr Boxell had a family history of his mother having suffered an abdominal aortic aneurysm in her fifties, and an uncle a cerebral aneurysm.

On 19 February 2012 Mr Boxell experienced chest pain. He was taken by ambulance to the Hospital where he was assessed, before being discharged without diagnosis.

Early on the morning of 6 October 2013, Mr Boxell again experienced chest pain. He called an ambulance and was transported to the Hospital, where he was assessed and treated in the emergency department, before being discharged in the early afternoon. Mr Boxell died at home on 7 October 2013.

Before setting out the history of Mr Boxell’s attendances and treatment I will say something about the witnesses who gave evidence, the Hospital, chest pain presentations and AD.

Witnesses

Mrs Boxell described her husband’s health generally, and her observations of him on 19 February 2012, and 6 and 7 October 2013.

Emergency Registrar Dr Belchi Chiezey gave evidence about Mr Boxell’s first attendance at the Hospital on 19 February 2012.

The three doctors who attended with Mr Boxell on 6 October 2013, Dr Steven Lindley, Dr Benjamin Harkin and Dr Martin Jackson, each gave evidence.

Ten witnesses gave expert evidence.

Dr David Eddey qualified in 1983, has worked in emergency medicine since 1988, and has been Director of Emergency Medicine at Geelong Hospital since 2005. In 2013, when asked by the Victorian Coroner to write an expert report on an AD case, Dr Eddey prepared comprehensive explanatory notes, which are evidence of the state of knowledge and clinical practice in relation to AD at the time.

Mr Alexander Rosalion qualified in 1975, and has practised as a cardiothoracic surgeon since 1987 at Melbourne hospitals including the Austin, St Vincent’s and Epworth Private. He said cardiothoracic surgery involves the chest cavity, including the heart and the aorta. He operates on AD regularly.

A/Prof John Raftos qualified in 1976, and has worked in emergency medicine since 1980. He is currently the Senior Specialist in Emergency Medicine at a number of hospitals including St Vincent’s Hospital, Darlinghurst, and is Co-joint Associate Professor of the Faculty of Medicine at the University of New South Wales.

Dr John Vinen qualified in 1978, worked in emergency medicine from 1981, from 1987 as Head of Emergency Medicine at Royal North Shore Hospital, and from 1999 as Director of Emergency Support Services responsible for cardiac arrest management and training.

Prof Peter Cameron qualified in 1981, and has worked in emergency medicine both in Australia and overseas since the 1980s. Since 2003 he has been Professor of Emergency Medicine at Monash University and Academic Director of the Emergency and Trauma Centre at The Alfred Hospital. Prof Cameron has researched, taught and published extensively on emergency medicine, and has held numerous relevant appointments.

Dr Anthony Kam qualified in 1995, and has worked as a radiologist since 2004. He is currently Head of Neuroradiology and Director of MRI at The Alfred Hospital.

Prof Richard Harper qualified in 1969, and has worked as a cardiologist since 1973. He is currently Emeritus Director of Cardiology, Monash Heart at Monash Medical Centre, and Adjunct Professor of Medicine at Monash University.

Prof Biswadev Mitra qualified in 2000, and has worked in emergency medicine since 2004, currently as a Consultant Emergency Physician at Alfred Health. He is a Professor and examiner at Monash University, and has researched and published extensively in the field of emergency medicine.

Dr Peter Habersberger qualified in 1965, and has worked as a cardiologist since 1972. He currently works as a Consultant Cardiologist at Cabrini Private Hospital and The Alfred Hospital.

Prof Anne-Maree Kelly qualified in 1983, has worked as an emergency physician since 1993, and is currently a Senior Emergency Physician and Academic Head of Emergency Medicine at Western Health, Professorial Fellow at the University of Melbourne, and Adjunct Professor at the Queensland University of Technology. Prof Kelly has lectured and published extensively in the field of emergency medicine.

A number of experts referred to and relied on excerpts from text books, journal articles and epidemiological studies, including:

(a) The International Registry of Acute Aortic Dissection (IRAD): New insights into an old disease (‘IRAD’),[36] a study of 464 patients diagnosed with AD who presented to 12 international referral centres in the years 1996 to 1998 to assess presentation, management and outcomes;
[36]Peter G Hagan et al, ‘The International Registry of Acute Aortic Dissection (IRAD): New insights into an old disease’ (2000) 283(7) Journal of the American Medical Association 897.

(b) Clinical recognition of acute aortic dissections: insights from a large single-centre cohort study (‘Klomp’),[37] a study of 200 AD patients to identify characteristics associated with a lower level of suspicion of the diagnosis;
[37]WW Jansen Klomp et al, ‘Clinical recognition of acute aortic dissections: insights from a large single-centre cohort study’ (2017) 25(3) Netherlands Heart Journal 200.

(c) Epidemiology and Clinicopathology of Aortic Dissection: A population-based longitudinal study over 27 years (‘Meszaros’),[38] a study of 84 AD patients to determine the incidence and mortality and analyse the clinical and pathological changes, of AD;
[38]Istvan Meszaros et al, ‘Epidemiology and Clinicopathology of Aortic Dissection: A population-based longitudinal study over 27 years’ (2000) 117(5) Chest 2171.

(d) Screening Evaluation and Early Management of Acute Aortic Dissection in the ED (‘Strayer’);[39]
[39]Reuben J Strayer, Peter L Shearer and Luke K Herman, ‘Screening Evaluation and Early Management of Acute Aortic Dissection in the ED’ (2012) 8(2) Current Cardiology Reviews 152.

(e) Clinical Prediction of Acute Aortic Dissection (‘von Kodolitsch’),[40] a study of 250 patients with acute chest pain, back pain or both to identify independent predictors of acute AD;
[40]Yskert von Kodolitsch, Ann G Schwartz and Christoph A Nienaber, ‘Clinical Prediction of Acute Aortic Dissection’ (2000) 160 Arch Intern Med 2977.

(f) Textbook of Adult Emergency Medicine;[41]

(g) Rosen’s Emergency Medicine: Concepts and Clinical Practice (‘Rosen’s’);[42] and

(h) The Emergency Medicine Manual (‘Dunn’).[43]

[41]Peter Cameron et al (eds), Textbook of Adult Emergency Medicine (Elsevier, 3rd ed, 2009).

[42]John A Marx et al (eds), Rosen’s Emergency Medicine: Concepts and Clinical Practice (Elsevier, 7^th ed, 2010).

[43]Robert Dunn et al (eds), The Emergency Medicine Manual (Venom Publishing, 5^th ed, 2010).

The Hospital

Dr Jackson said the Hospital’s emergency department is now one of the biggest in Melbourne, and sees 250 to 300 patients per day, or approximately 100,000 patients per year. No estimate was given of the number of emergency patients seen by the Hospital in 2013, but I infer it was already large.

Chest pain

Chest pain is a common complaint, accounting for approximately 5% of emergency presentations.

The causes of chest pain in patients presenting at emergency departments are varied.

The most common serious cause is acute coronary syndrome, which includes myocardial infarction (heart attack) and unstable angina. A recent Australian study of 926 adult emergency chest pain presentations found 11% of patients presented with acute coronary syndrome.[44]
[44]Louise Culten et al, ‘Cost and outcomes of assessing patients with chest pain in Australian emergency departments’ (2015) 202(8) Medical Journal of Australia 427, 429.

When a coronary cause is suspected, patients are often placed on a ‘cardiac pathway’, which involves a period of observation, repeat ECGs and serial troponin blood tests in emergency, and recommendation for further outpatient investigation after discharge. Mr Rosalion explained that troponin is a very sensitive measure for heart ischaemia problems, and if serial troponin tests are performed and are normal, the likelihood of there being an acute cardiac event becomes extremely low. Prof Mitra said normal ECGs and troponins do not exclude acute coronary syndrome, and a small percentage of patients who are discharged will have a positive outpatient scan and will re-present for urgent angiography and stenting, or suffer a heart attack.

Other serious causes of chest pain include pulmonary embolism, pneumothorax, oesophageal perforation, pneumonia and AD.

AD is a rare condition. A case of acute AD would be expected in about one in 10,000 emergency presentations, or about one in 500 chest pain presentations.

Other common causes of chest pain include stable coronary artery disease (ischemic heart disease), pericarditis, other cardiac issues, gastrointestinal disorders and musculoskeletal pain.

Dr Eddey said that the number of AD presentations is so small that some emergency providers may only see several cases in their career. He added that among senior emergency doctors, there is group learning from everyone’s shared experience which enhances their own medical practice, so that although one doctor may not see an AD for years, the group as a whole would see a number of cases, and a hospital would be expected to run an academic program that allows that experience to be shared.

Aortic dissection
The aorta

The aorta is the largest blood vessel in the body. It takes the whole of the cardiac output and distributes it via its branches to the head and neck, upper limbs, thorax, abdomen and abdominal organs, pelvis and the lower limbs. It commences at the aortic root and aortic valve at the outflow of the left ventricle of the heart, ascends through the pericardial sac to the aortic arch, then descends through the chest to the lower abdomen where it divides into the iliac arteries which serve the pelvis and the lower limbs.

The wall of the aorta is made up of three layers, the inner being the intima, then the media and the adventitia. The passageway for blood flow within the aorta is called the lumen.

Dissection

Dissection occurs when a tear or defect in the intima allows blood to enter and dissect or split the media creating a false lumen. A dissection may progress either proximally toward the heart, or distally from the point of the intimal tear. The two AD classification systems are pictorially represented below:

Mr Boxell suffered a Stanford classification type A, or DeBakey Type II, dissection, which originated in, and was limited to, the ascending aorta.

Most ADs are acute. A minority are caused traumatically, either by high speed deceleration injury or as a consequence of catheter procedures. However, most dissections are the end result of a pathological process causing weakening of, and/or increased stress to, the aortic wall.

Acute type A dissections are highly lethal with a mortality rate of 1 to 2% per hour after the onset of symptoms. In his notes, Dr Eddey stated, ‘Acute aortic dissection is relatively rare, but failure to consider the diagnosis may have catastrophic consequences with untreated mortality rates of 90% or more’.

Demographics

In IRAD, 62% of patients had a type A dissection. The mean age of patients was 63 years (61 years for type A dissection). In von Kodolitsch the mean age of the 78 patients with a type A dissection was 50 years.

In relation to the age of patients, Dr Eddey said in his notes:

In general patients with acute aortic dissection fall into two main groups: younger patients with underlying inherited disease predisposing to aortic dissection (eg Marfan Syndrome), or older patients with cardiovascular disease, particularly hypertension and atherosclerosis. However dissection may occur across a range of age groups and in table one below, 30% of aortic dissection occurred in patients <40 years old. British data shows that aortic dissection affects all ages with 27% of patients aged 17–59, 40% cent aged 60–74 and 33% aged >75 years.

Risk factors

Hypertension, particularly if untreated, is a significant risk factor for AD. In IRAD 72% of patients had a history of hypertension (69% for type A dissection). Smoking is also a relevant risk factor. The incidence of AD for men is approximately double that for women.

Genetic predisposition

It was known in 2013 that a number of genetic connective tissue disorders, such as Marfan syndrome, Ehlers-Danlos syndromes and Loeys-Dietz syndrome were significant risk factors for AD in younger patients.

It is now known that a family history of aortic aneurysm is a relevant risk factor for AD. Whether emergency physicians were aware of this connection in 2013 is contentious.

Symptoms and signs

In his 2013 notes Dr Eddey sets out the descriptions of the presenting symptoms of acute AD found in a number of medical and emergency medicine texts and papers, including:

(a) Rosen’s:

Pain is by far the most common presenting complaint, affecting more than 90% of patients. Most patients of painless aortic dissection are chronic in nature. The pain is usually excruciating, occurs abruptly, is most severe at onset and is typically described as ‘sharp’ more often than ‘tearing’ or ‘ripping’.
The location of the pain may help localise the dissection. Anterior chest pain is associated with the ascending aorta, neck and jaw pain with the aortic arch, pain in the interscapular area with the descending thoracic aorta and pain in the lumbar area of abdomen with involvement below the diaphragm.[45]
[45]Rosen’s 1089.

(b) Harrison’s Principles of Internal Medicine (‘Harrison’s’):[46]
[46]AS Fauci et al (eds), Harrison’s Principles of Internal Medicine (McGraw Hill, 17^th ed, 2008).

Almost all patients with acute dissections present with severe chest pain, although some patients with chronic dissections are identified without associated symptoms. Unlike the pain of ischemic heart disease symptoms of aortic dissection tend to reach peak severity immediately, often causing the patient to collapse from its intensity. The classic teaching is that the adjectives used to describe the pain reflect the process occurring within the wall of the aorta – ‘ripping’ and ‘tearing’ but more recent data suggest that the most common presenting complaint is sudden inset [sic] of severe sharp pain. The location often correlates with the site and extent of the dissection. Thus dissections that begin in the ascending aorta and extend to the descending aorta tend to cause pain in front of the chest that extends into the back, between the shoulder blades.

(c) Textbook of Adult Emergency Medicine:[47]
[47]Peter Cameron et al (eds), Textbook of Adult Emergency Medicine (Elsevier, 3^rd ed, 2009) 264.

Pain is the most common presenting symptom, occurring in 74-95% of patients. Pain is classically described as severe, unremitting, tearing or ripping in nature and maximal at onset. It may be migratory, reflecting proximal or distal extension of the tear. The site of the pain may reflect the site of the dissection with involvement of the ascending aorta typically producing anterior chest pain, whereas neck and jaw pain may suggest aortic arch dissection. Interscapular pain can occur with involvement of the descending aorta, and as distal dissection continues pain may migrate to the lower back or abdomen.[48]
[48]Ibid 264.

(d) Guidelines for the diagnosis and management of patients with thoracic aortic disease (‘American Heart Foundation Guidelines’):[49]
[49]Loren F Hiratzka et al, ‘Guidelines for the diagnosis and management of patients with thoracic aortic disease’ (2010) 121(13) Circulation 1544.

Patients with acute aortic syndromes often present in a similar fashion, regardless of whether the underlying condition is AoD (aortic dissection), IMH (intramural hematoma), PAU (penetrating atherosclerotic ulcer), or contained aortic rupture. Pain is the most commonly reported presenting symptom of acute AoD regardless of patient age, sex or other associated clinical complaint. Pooled data from over 1000 patients in 8 studies found that the pain of acute dissection is perceived as abrupt in onset in 84% of cases (95% CI 80% to 89%) and of severe intensity in 90% of cases (95% CI 88% to 92%). Although classically described as having a tearing or ripping quality, registry data suggest patients are more likely to describe the pain of acute dissection as sharp or stabbing (51% to 64%, respectively) and that report of a migrating quality to pain is highly variable (12% to 55%). Pain may subsequently ease or abate, leading to a false reassurance on the part of the patients and physicians.[50]
[50]Ibid.

(e) IRAD:

Severe pain was the most common presenting symptom and 84.8% of patients recalled abrupt onset. The majority of patients complained of chest pain (72.7%). Anterior chest pain was typical in patients with type A dissection, whereas patients with type B dissection more often experienced pain in the back or the abdomen, although there was substantial overlap. Of note pain was described as sharp (64.4%) more often than tearing or ripping (50.6%). Hypertension at initial presentation was more common in patients with type B dissection (70.1% vs 35.7%) 90% or more of the patients described the pain as “severe or the worst ever”.[51]

[51]IRAD 9 [6].

There are differences between the experts as to whether these extracts reflect the state of knowledge of emergency physicians in 2013, and the degree to which the history of pain given by Mr Boxell raised AD as a differential diagnosis which needed to be confirmed or excluded.

AD pain is sometimes classically described as unremitting. However, as the American Heart Foundation Guidelines state, pain may ease or abate. Meszaros, a longitudinal population study, includes the following finding:

The initial pain was followed by a painless interval, a “window to in the spectrum of pain” lasting from 1 to 2 h to 4 to 5 days duration, ending with a return of pain or sudden death in 27 of our 66 hospitalized patients (41.0%).[52]

In his notes Dr Eddey stated:

Pain from aortic dissection may completely resolve and should not lead clinicians to discount the diagnosis, particularly if risk factors and high-risk features exist. Dissection may occur in stages, with recurrence of the pain when dissection recommences.
[52]Meszaros 1273-4 (citations omitted).

Clinical examination

Though they frequently present with high blood pressure, and sometimes low blood pressure, patients will often present with normal blood pressure. Other signs on clinical examination are dependent on the location and extent of the dissection.

A dissection which progresses toward the heart and involves the aortic valve may cause a heart murmur to be evident on physical examination. A dissection which extends to or beyond the aortic arch may cause restriction of blood flow to organs or limbs resulting in clinical signs such as neurological symptoms, differential blood pressures in the upper limbs, pulse deficit or end organ damage. Because Mr Boxell’s dissection was confined to the ascending aorta and did not extend to the aortic valve or the aortic arch, no such clinical signs or symptoms were evident.

Investigations

There are a range of findings on chest x-rays associated with or indicative of AD, the most common of which are widening of the mediastinum (the central compartment of the chest cavity) and abnormal aortic contour. In IRAD 62% had a widened mediastinum, 50% had abnormal aortic contour, 21% had neither and 12% had no abnormality.[53] In his notes Dr Eddey stated:
[53]IRAD.

The radiographic findings classically associated with thoracic aortic dissection are not reliably present and their absence is not sufficiently sensitive to rule out aortic dissection.

To similar effect, the authors in Strayer state:

The absence of suggestive findings on chest xray makes aortic dissection less likely, however, 10-20% of patients with aortic dissection have a normal chest x-ray; therefore a negative study cannot exclude the disease and should not play a decisive role in the decision to pursue advanced imaging.[54]

[54]Strayer 153 (citations omitted).

CTA is the definitive investigation and reliably confirms or excludes the diagnosis.

The diagnostic challenge

In his notes Dr Eddey stated:

The clinical assessment of acute severe thoracic pain includes history, physical examination and investigations. A careful history can give important clues as to the cause of the pain, help establish risk factors etc for the condition and formulate differential diagnoses.
Clinical diagnosis of aortic dissection has been known to be difficult with clinicians correctly suspecting the diagnosis in as few as 15-45% of presentations on initial assessment and a diagnostic delay of more than 24 hours after hospitalisation occurs in up to 39% of cases. When the diagnosis is made it may be an incidental discovery made during an advanced imaging procedure (eg coronary angiography) intended to assess for other diagnoses or the patient may die whilst awaiting such an investigation.

The authors of IRAD comment:

Acute aortic dissection may be uncommon, but complications occur often and early, and the outcome is frequently fatal. Since dissection is a dynamic process that may occur anywhere within the aorta, the clinical spectrum of presentation is broad. Symptoms may mimic more common disorders such as myocardial ischemia or stroke, and physical findings may be absent or suggestive of a diverse range of other conditions. Therefore, dissection is often difficult to diagnose, and a high clinical index of suspicion is mandatory. As recently as a decade ago, a large referral center reported on a series of patients in whom the diagnosis was frequently missed on initial evaluation (38%) and first established in 28% of patients at postmortem examination. Although clinicians today are better equipped to deal with the complex threat posed by aortic dissection, mortality rates remain high.[55]

[55]IRAD 901 (citations omitted).

The authors in Strayer observed:

Approximately one in 10,000 ED patients will have aortic dissection, a number so small that emergency providers may only see several cases in their career. Only one quarter of patients with aortic dissection present with a combination of classic features (pain of sudden onset or ripping/tearing quality, blood pressure differential, and widened mediastinum on chest radiograph); 1 in 25 patients diagnosed with aortic dissection has none of the classic features. Furthermore, aortic dissection can cause myriad symptoms localising to any organ system or body part, and each of these symptoms can be explained by more common conditions – often by more common dangerous conditions that quite reasonably establish the focus of care but ultimately turn out to be distractors.
Emergency clinicians are thus confronted with innumerable patients whose symptoms could be caused by aortic dissection but almost certainly are not; aortic dissection could therefore be said to represent not just a needle in a haystack, but a needle disguised as a blade of hay in a haystack. Physicians evaluating patients whose symptoms may be caused by aortic dissection must therefore understand the clinically relevant risk factors and clinical manifestations of this condition and develop a risk stratification strategy that catches as many patients with the disease as possible without overusing advanced imaging studies.[56]

The poetic language used in Strayer to describe the difficulty of the diagnostic task might be explained by the main purpose of the article being to recommend an evaluation pathway tool presented by the authors.

[56]Strayer 152 (citations omitted).

Prof Mitra explained the diagnosis of AD is often missed due to insufficient recognition of variable, non-specific symptoms.

Prof Cameron said many cases of AD will present with clear-cut reasons for further investigation, but those that fall into the category of undifferentiated chest pain are rare and difficult to diagnose against the backdrop of many cases per week of undifferentiated chest pain of benign origin.

Prof Kelly described AD as a well-known chameleon which can be hard to diagnose.

History of attendances and treatment
19 February 2012

During the afternoon of 19 February 2012, Mr Boxell developed chest pain, and called an ambulance. Mrs Boxell said her husband complained he was suffering really bad chest pain and that his arm was hurting. She said he was sweaty, with beads of sweat coming off his face.

The ambulance case description records that Mr Boxell developed sudden onset central chest pain that radiated into his left shoulder which had resolved by the time the ambulance arrived, and a slight headache that was increasing in intensity. An ECG showed no material abnormality.

Mr Boxell was transported by ambulance to the Hospital, where he was recorded as reporting his chest pain had resolved, that he was lethargic and had a headache, for which he was given Panadol. A CT scan of his brain was reported as normal. A chest x-ray was reported as demonstrating mild unfolding of the aorta, but no other abnormality.

Mr Boxell was discharged early the following morning with a letter to his GP recording the diagnosis as chest pain. Treatment given was simple analgesia. The Hospital requested the GP organise a stress test.

Stress echocardiograph

When he attended his GP on 24 February 2012, Mr Boxell reported no pain. He was referred for a stress echocardiograph, which was subsequently performed on 24 March 2012, and was reported as negative for inducible myocardial ischaemia.

6 October 2013

Mr Boxell remained well until 6 October 2013. He was due to commence work that day at 6:30am. Mrs Boxell said her husband woke her and said he had called an ambulance, and that he felt like he was having a heart attack. She said he did not look well, his face was all red, he was sweating profusely and his forehead was hot to touch. She said Mr Boxell was agitated, holding his left shoulder and complaining, ‘It’s killing me, it’s just like somebody’s got knives just stuck right in here’, indicating the hollow below his left shoulder. Mrs Boxell said her husband seemed to be getting worse, his breathing was shallow and raspy, and every time he breathed she could see pain in his face. She said the episode seemed similar to February 2012, but more severe.

An ambulance arrived at 6:01am, and Mr Boxell was given 0.15 mg of GTN (nitroglycerin) sublingually and a patch administering 0.4 mg per hour, and 10 mg of morphine by IV. The ambulance case description reads:

47 YO male PT who explains this AM whilst sitting on the computer, states having the onset of tight chest pain radiating down into the L) shoulder with an associated headache and hyperventilation. PT explains previous episode of similar being investigated, which was associated to the PT’s anxiety. PT explains recent stressors, however not feeling anxious at the current time. PT explains nil dizziness, nil palpitations and nil N&V, however is a smoker and has a strong cardiac family history. AV called.

The ambulance secondary survey reads:
Chest pain described as sharp & tightness denies radiation & aggravated by movement; Left Shoulder pain described as sharp & tightness denies radiation & aggravated by movement; anxiety >> +++; headache ; hyperventilation >> +++; light headed >> POST MORPHINE; no facial droop; grips strong bilaterally; speech normal
No altered conscious state ; cough ; cyanosis ; Diaphoretic ; dizzy ; fever ; nausea ; palpitations ; photosensitivity ; rash ; short of breath ; unsteady gait ; vomiting

The ambulance notes record a blood pressure reading of 160/110 at 6:05am, pain as 5 (moderate), reducing to no pain at 6:35am.

Mr Boxell arrived at the Hospital at 6:40am and was seen in triage at 6:45am. He was discharged from the Hospital at about 3:40pm. During the period of his admission he was seen by Junior Registrar Dr Lindley, first year Resident Dr Harkin, and Senior Emergency Consultant Dr Jackson.

Dr Jackson’s treatment was the main focus of the plaintiffs’ case. It was alleged he did not consider a diagnosis of AD, and that he should have ordered a CTA to confirm or exclude the diagnosis.

Dr Lindley

Dr Lindley completed his qualifying degree in medicine in 2011, and has since practised as a doctor. He said he worked at the Hospital for just over a month before 6 October 2013, and had previously worked in an emergency department in a UK hospital for about four months. Dr Lindley worked night shift at the Hospital on 5/6 October 2013. He reviewed Mr Boxell at about 7:15am, and made notes at the end of his consultation at 7:40am.

Dr Lindley recorded, under ‘system review’, that Mr Boxell’s risk factors for ischaemic heart disease were smoker, 30–40 pack years, normal cholesterol, no diabetes mellitus, hypertension for which he had not been taking medication for the last year, and a blood pressure reading of 180 systolic in the previous week at work. Dr Lindley explained that a pack year was calculated as 20 cigarettes per day for a year. He recorded a family history of Mr Boxell’s mother having suffered an abdominal aortic aneurysm in her fifties, and an uncle a cerebral aneurysm.

Under ‘presenting complaint’, Dr Lindley recorded that Mr Boxell was a 47-year-old male who experienced sudden onset central chest pain, left shoulder pain and headache, frontal and occipital, at 5:30am while getting ready for work. Chest pain was described as 8 out of 10 after 30 seconds, sharp, no radiation, associated sweating, no nausea or vomiting, no shortness of breath, no palpitations, no change with GTN. The headache was described as worse on movement, and after GTN. Dr Lindley recorded that Mr Boxell was well prior to 6 October, had no fever or cough, and that the chest pain and headache were ongoing.

Dr Lindley recorded ‘past medical history’ as no exercise intolerance, no angina, anxiety and depression, an episode of chest pain with anxiety about a year previously for which there was no angiogram and no stress test, and hypertension. Against the history of anxiety and depression Dr Lindley recorded that Mr Boxell’s wife had phoned to say he was very anxious.

Under ‘family history’, Dr Lindley recorded that there was no family history of ischaemic heart disease.

On physical examination Dr Lindley found normal pulse, temperature, respiratory rate and saturation of oxygen, and a blood pressure reading of 161/116. Cardiovascular examination was normal, with normal heart sounds and no murmurs, no heave, no peripheral oedema, and warm, dry skin. Dr Lindley said the ECG was not suggestive of acute ischaemia. On chest examination Mr Boxell was wheezy in the right mid zone, but had no chest tenderness or left shoulder tenderness. Abdominal examination and a thorough neurological examination were both normal. Dr Lindley noted Mr Boxell was ‘acting very – chaotic’. He said he remembered Mr Boxell being very anxious.

Dr Lindley made the following ‘provisional’ diagnosis:

Chest pain with cardiac risk features.
Likely large component of this related to anxiety, but needs investigating for [ischaemic heart disease].
Headache? Initial, worse after GTN.

He recorded the following management plan:

Bloods inc. troponin
CXR [chest x-ray]
Remove GTN patch as BP ¯ [blood pressure decreased] + headache bothering him much more than CP [chest pain] 8/10 vs 4/10.
Panadol/ibuprofen
12° [12-hour] troponin - admit to ESSU
Diazepam PRN
DW [discuss with] senior ? CT.

Dr Lindley said GTN can often relieve chest pain due to angina, and act as a helpful diagnostic informant, but can also leave the patient with a very unpleasant headache. He said his note comments on the fact that the headache preceded placement of the GTN patch, but became worse after the patch was placed.

Dr Lindley said he could recall the case because he became aware of Mr Boxell’s death several days after seeing him. However, he had little memory of his review of Mr Boxell and was dependent on his notes and what he said his practice would have been.

Dr Lindley said chest pain and headache were both common presentations. He said from the tenor of his notes he wanted to exclude common serious causes for chest pain, and his focus was ischaemic heart disease risk factors. He said his thought process would have included that Mr Boxell was not taking medication for hypertension, and was a smoker, which led to his comment ‘chest pain with cardiac risk features’. Dr Lindley said he would have thought about the cause of the chest pain in order to balance an argument for investigations, and he was looking at angina, heart attack, musculoskeletal chest pain, chest infection, and post-viral inflammation of the chest wall. He said other pathologies inside the chest included pulmonary embolism and AD. He felt anxiety was playing a large part to Mr Boxell’s presentation. Dr Lindley said he wanted to discuss the case with a senior doctor because he wanted support in relation to his plan, particularly whether CT imaging was required, though he could not recall whether that related to the head or the chest. After his shift finished at 8:00am he went to find Dr Jackson, but he could not recall the details of their discussion.

Dr Lindley agreed his interpretation of Mr Boxell’s history was that there was a sudden onset of chest pain. He said it was likely Mr Boxell used the word ‘sharp’ to describe the pain. By the time he saw Mr Boxell his physical symptoms had settled down, he did not appear to be severely unwell in the sense of cardiovascular instability, and his consistent feature was that of anxiety. He said Mr Boxell was oriented, not confused, had a normal heart rate, relatively normal blood pressure and was perfused peripherally, which indicated his cardiovascular system was working without signs of compromise.

A nursing note at 7:45am records:

Pt appeared very anxious and restless — asking “where I am now?”, teary, stating the headache and pain on feet, arms and chest.

At 8:00am the GTN patch was removed. Mr Boxell’s blood pressure was 127/79.

Dr Harkin and Dr Jackson

At 9:00am Mr Boxell was reviewed by Dr Jackson with Dr Harkin. A note of Dr Jackson’s consultation was made by Dr Harkin.

Dr Harkin qualified in 2011, worked as an intern at Freemantle Hospital, then as a first year resident at the Hospital from February 2013. He commenced in the Hospital emergency department in early August 2013.

In 2013, Dr Jackson was an Emergency Consultant at the Hospital.

Dr Harkin recorded that Mr Boxell was a 47-year-old male who presented with chest pain, with a previous episode of chest pain caused by anxiety. Mr Boxell reported stress secondary to marriage breakdown over the last three to four years, but that the last couple of weeks had been okay. He had a recent medical check-up at which blood pressure 188 systolic was recorded, cholesterol was normal, he was not type 2 diabetic and his blood-sugar levels were good. Mr Boxell is noted to currently smoke 25 to 30 cigarettes per day, occasionally use marijuana, and have a moderate alcohol intake. He reported having three small Jim Beam and Cokes and one joint of marijuana the previous night. That morning he had two cups of coffee and a cigarette. At 5:30am he experienced central chest pain radiating to the left shoulder, was clammy, diaphoretic ‘+ + +’ (Dr Harkin said when he used ‘+’ in notes he was recording a scale where one ‘+’ was mild and ‘++++’ was extreme). He felt short of breath, initially had pleuritic pain (made worse by breathing), and had no nausea. He reported headache ‘+ + +’ over one minute. Mr Boxell had been given GTN, aspirin and morphine by the ambulance officers, and a GTN patch and diazepam in emergency. He wrote, ‘chest pain is now mild 1/10, can increase to 6–7/10, but comes and goes quickly’. Mr Boxell reported increase in headache, that pain lasted longer, was exacerbated by movement, and was currently 4/10.

Dr Harkin recorded that on examination there was no chest wall tenderness, no chest pain on movement, no shoulder pain on movement, but increased headache on movement. Mr Boxell was not short of breath, and the pain was not pleuritic. Mr Boxell was afebrile, his blood pressure was 149/105, he had a heart rate of 80, a respiratory rate of 12 and oxygen saturation was 97% in room air. Examination of the chest and abdomen were normal, and the calves were not swollen or tender.

Dr Harkin recorded Mr Boxell had a previous stress test two to three years previously which he could not complete because of increased blood pressure, but had no chest pain at the time. He reported increased alcohol use in the past, with a history of drinking at least a six pack of light beer every day. There was a previous episode of chest pain and headache in February 2012 for which no significant cause was found.

Dr Harkin said he recalled Mr Boxell’s case because a couple of days after 6 October 2013 Dr Jackson told him Mr Boxell died of AD. However he relied heavily on his notes when giving evidence.

He said he would have recorded examination findings that were significant, either from what Dr Jackson told him or from what he saw. He said Dr Jackson would have listened to Mr Boxell’s heart, but he did not make a note of heart sounds because nothing significant was found. He said there would have been other findings made by Dr Jackson as he examined Mr Boxell and in his own mind went through a differential diagnosis of what was significant and what was not. He would not have documented every single one of those unless Dr Jackson told him something was significant to document. He recalled having a discussion with Dr Jackson at the end of the consultation about the next step in Mr Boxell’s care, though he could not recall the details of the discussion other than a plan was made for Mr Boxell to go to the short stay unit, he was to have repeat blood tests and an ECG to look for signs of heart ischaemia, and if those tests were normal, Mr Boxell was well and his pain had subsided, he would be discharged with a recommendation that his GP arrange for a stress test. Dr Harkin said he could not recall any discussion about whether Mr Boxell had another condition such as AD.

Prof Mitra said the cardiac pathway was commonly followed by emergency departments around Australia, and it is standard practice to discharge a patient who presents with chest pain deemed to be of low risk of ischaemic heart disease with advice for outpatient follow-ups. He added:

It is accepted that such management pathways result in high healthcare utilization by patients after discharge, some risk of major adverse cardiovascular effects and a low (not zero) risk of death, but is consistent across Australia.

Prof Mitra said, in his opinion, a patient presenting with chest pain is owed a duty of care by the emergency department to provide a definitive diagnosis before discharge. For reasons just stated, the practice described by Prof Mitra is not consistent with that practised in the hospitals represented by Dr Eddey, A/Prof Raftos and Dr Vinen. There is a difference between a standard being commonly practised, and it being widely accepted as competent professional practice by a significant number of respected practitioners in the field. While his evidence supported the former proposition, given that he did not subscribe to the standard he said was commonly practised, it gave little, if any, support to the latter.

Like Prof Cameron, Prof Kelly misunderstood Mr Boxell’s presenting history and misstated the plaintiffs’ case. Prof Kelly’s appreciation of aortic pain was inconsistent with at least two of the textbooks she provided and with IRAD. I infer a standard accepted by respected practitioners in the field as competent practice would be based on current learning in relation to the diagnostic characteristics of life-threatening disorders they may encounter, and an accurate history, so as to allow the comparative risks and benefits of proceeding in a certain way to be assessed. The combined effect of these matters was to significantly reduce the weight of Prof Kelly’s evidence that the decision to discharge Mr Boxell without first performing a CTA was widely accepted as competent professional practice.

Each of Profs Cameron, Mitra and Kelly emphasised the critical importance of the description of the onset and quality of pain in the diagnosis of chest pain. Profs Cameron and Kelly said this was a continuing process throughout the period of the emergency presentation. Prof Kelly described the need to re-calibrate the probability of different diagnoses, re-evaluate, and double-check with the advantage of investigation results and other information obtained throughout the presentation. This contrasted to some degree to the evidence of Prof Mitra, who said the cardiac pathway is exclusive, and once the patient is on the pathway alternate diagnoses are not considered during the presentation unless there is something that changes. However, Prof Mitra said Mr Boxell added it would have been a good idea to reconsider the differential diagnosis before discharge, given the normal ECGs and troponins.

The evidence of Prof Harper and Dr Habersberger does not significantly advance the case of the defendant on this issue. Neither can speak to emergency practice in states other than Victoria. Like Prof Kelly, their opinions were not based on the findings of IRAD, von Kodolitsch, and texts such as Rosen’s and Dunn.

The circumstance requiring a professional response was the whole of Mr Boxell’s presentation at the Hospital on 6 October 2013. Factual considerations included:

(a) the presenting history, and the extent to which it was consistent with, or characteristic of, AD;

(b) clinical evaluation and history-taking throughout the presentation;

(c) evaluation of the life-threating diagnoses, most of which were excluded;

(d) ECG, troponin and investigation results, the outcome of the cardiac pathway, and reduced probability of a cardiac cause for the presentation; and

(e) there being no diagnosis for the presentation.

The decision to discharge Mr Boxell, and to not perform a CTA, must take account of these matters. The response of the emergency physician to these factual circumstances may determine the course of events. It is difficult to identify a common standard which Profs Cameron, Mitra and Kelly all accept represents competent professional practice which takes all these matters into account. There were differences between the experts, for example, Prof Cameron’s red flags, his acceptance of the family history as a risk factor, and his evidence that he would definitely perform a CTA if the onset of pain was abrupt; Prof Mitra’s identification of three risk factors for AD; and Prof Kelly’s appreciation of the symptoms, signs and risk factors which are characteristic of AD. Their evidence does not establish a standard widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances.

A standard of care accepted by Profs Cameron, Mitra and Kelly as competent professional practice in the circumstances would have included considering the diagnosis of AD with a high index of suspicion throughout the emergency presentation, teasing out the history of the onset and quality of pain in minute detail, and reconsidering the probability of AD before discharge, when other possible life-threating causes for the presentation had been excluded or rendered less likely. The relative risks and benefits of performing a CTA could only be known and assessed if these steps were taken. The Hospital did not consider the diagnosis of AD with a high level of suspicion at any stage of Mr Boxell’s presentation, carefully tease out the pain history, or reconsider the diagnosis before discharge. It is not possible to know what further information would have been obtained had these steps been taken, or what the outcome would have been in terms of whether the standard required that a CTA be performed. Because the Hospital did not take the steps to which I have referred, it cannot be concluded that its conduct satisfied a standard of competent professional practice had such a standard been established by the evidence of Profs Cameron, Mitra and Kelly.

Peninsula Health has not satisfied the preconditions of s 59(1), and cannot rely on the provision to establish that it was not negligent in providing the service to Mr Boxell on 6 October 2013. Therefore ss 49, 49 and 58 of the Act are to be applied, and it is necessary to consider the conduct of Peninsula Health against the standard of reasonable care.

Did the defendant breach its duty because the Hospital failed to perform a CTA?
Submissions
Plaintiffs

The plaintiffs submitted that Mr Boxell’s presenting symptoms and signs required that a number of potentially lethal causes of chest pain be identified and excluded. In fact the only potentially lethal cause that was not excluded was AD. Further consideration of that diagnosis was required, particularly once Mr Boxell completed the cardiac pathway and acute coronary syndrome had effectively been excluded.

The history of sudden onset severe central chest pain radiating to the left shoulder was consistent with the description of AD pain in IRAD. Mr Boxell had relevant risk factors, including the family history, hypertension, smoking history and age. The sweatiness and clamminess with which he presented indicated a serious physiological cause. The presentation and risk factors justified performing a CTA, particularly after other potentially lethal causes had been excluded.

The defendant’s experts misunderstood the true nature of Mr Boxell’s presentation, perhaps because they relied on Dr Jackson’s statement to the Coroner, which was not provided to the plaintiffs’ experts, and were over-reliant on the presence of classic signs, most of which will be irrelevant to a type A dissection. Further, the defendant’s witnesses showed a different willingness to accept risk, and placed too great a reliance on Mr Boxell’s pain settling.

It should be concluded the Hospital failed to consider a diagnosis of AD, which infected the whole process of treatment and investigation while Mr Boxell was in hospital. There was a failure to adjust probabilities and to reassess Mr Boxell throughout his stay, particularly when it was established that the cause of his presentation was not an acute coronary syndrome. Anxiety and reflux were not adequate explanations for the presentation. At the end of the cardiac pathway, when all investigation results were negative, if there was justification for undertaking a sestamibi scan, there was no justification for not performing a CTA.

Dr Vinen and Prof Kelly were not told of Mr Boxell’s outcome when they provided their reports. Both concluded AD was a probable diagnosis. This evidence puts into perspective Prof Mitra’s concern about the degree of risk of there being a dangerous coronary condition, even after the negative troponins and ECGs.

The outrage expressed by the defendant’s experts about the prospect of submitting so many chest pain patients to CTA examination is not justified. As Dr Eddey said, CTA is an extraordinarily common everyday investigation. Further, the requirement for CTA investigation was overstated by the defendant’s experts. Prof Cameron’s extreme and colourful complaint that every person who suffers ‘a twinge of chest pain’ cannot be submitted to a CTA does not inform Mr Boxell’s case. He did not have a twinge of chest pain. Every other potentially lethal cause of his presentation had been excluded, and his presentation and history taken as a whole more than justified performing a CTA.

There was a failure by the Hospital, and by the defendant’s experts, to approach the analysis in an open-minded way. The focus on distinctive, but often uncommon, signs of AD in effect placed too much weight on the wrong thing. The Hospital and the defendant’s experts should have considered the common things, as described in IRAD, as opposed to looking for the distinctive things. The risk of the approach taken by the defendant’s experts is that type A dissections, which most often will not be productive of distinctive signs, will be missed. That cannot be a reasonable approach. There was no evidence that the Hospital had an appropriate index of suspicion for AD. No one thought about the diagnosis. If it is not thought of, one risks relying on the patient having a distinctive sign or symptom. The end result of that approach is that, in a case such as Mr Boxell’s, no diagnosis will be made.

The defendant

The defendant submitted that whilst Mr Boxell had severe pain initially, it reduced to nil, and remained that way for some hours, which was encouraging. Mr Boxell’s blood pressure and observations were relatively normal. This impacted the reasonableness of Mr Boxell being discharged.

When he arrived at the Hospital it was probable Mr Boxell’s chest pain had a coronary cause. In his case the history of smoking and alcohol use, family history, hypertension, anxiety, nature and onset of chest pain, and complaint of left shoulder pain moved the probabilities even further in favour of a coronary cause.

Comparatively, the risk of AD was very low. Mr Boxell was only 47, which placed him in the demographic where the condition was even rarer. The description of pain had none of the classical features of ripping or tearing, radiating into the back or being unremitting. The chest x-ray was normal. There was no evidence of differential blood pressures, absent pulses or other relevant clinical signs.

Even after the negative repeat troponins and ECGs, a coronary cause remained by far the most likely serious cause of Mr Boxell’s presentation.

There was no proper clinical basis to justify performing a CTA, and there were risks associated with the investigation, which included exposure to radiation causing cancer, an adverse reaction to the dye and kidney impairment. Further, there was a cost to the health system in terms of prioritisation of patients, and a potential cost to the patient in terms of inconvenience and incidental findings requiring monitoring and further investigation.

The standard of reasonable emergency care of Mr Boxell did not require that a CTA be performed.

Analysis

For the following reasons I conclude that it was not reasonable emergency practice to discharge Mr Boxell without diagnosis before performing a CTA to confirm or exclude AD.

I conclude that the presenting signs and symptoms of AD, and the results of investigations such as chest x-ray, are best described in IRAD, which was published in 2000. The IRAD outcomes appear to have been adopted by other articles and texts published before 2013, including Rosen’s, Dunn, Harrison’s, the American Heart Foundation Guidelines and Strayer, and are consistent with the analysis of signs and symptoms in von Kodolitsch.

I accept the evidence of Dr Eddey. His evidence was based on an accurate understanding of Mr Boxell’s presenting history. The opinions he expressed were considered and well-reasoned. His conclusions were supported by A/Prof Raftos, Dr Vinen and Mr Rosalion, and were consistent with the literature. In the final analysis the difference between Dr Eddey’s opinion and those expressed by Profs Cameron and Mitra was not as great as appeared at first blush. When he addressed his mind to Dr Lindley’s history, Prof Cameron agreed it was close to a red flag justifying investigation of AD. Prof Mitra’s opinion was that there should be a definitive diagnosis for chest pain before a patient is discharged from emergency.

The role of emergency physicians is to keep patients safe from harm by taking reasonable precautions to exclude or confirm immediately life-threatening causes for their presentation to the emergency department. When the presenting complaint is chest pain, that involves considering a list of diagnoses including AD.

The experts agreed that the history of the onset and character of pain is critically important to investigation and diagnosis of chest pain presentations. There is a material difference between the description of pain recorded in the ambulance notes and that recorded by Dr Lindley. Prof Cameron said the description of pain was varied and inconsistent, and what you were looking for, in terms of a red flag, was a consistent history over time. Prof Kelly relied on the history recorded in the ambulance notes to discount AD as a potential cause of Mr Boxell’s presentation. The presenting history was not resolved at the 9:00am assessment with Dr Jackson and Dr Harkin. It is not an answer to the plaintiffs’ case that the ambulance history was inconsistent with AD, or made the diagnosis so unlikely that a CTA was not clinically justified. Reasonableness required that the Hospital act on what appeared to be a carefully taken history of presenting symptoms recorded by Dr Lindley. That need was reinforced by the fact that Dr Lindley was sufficiently concerned about Mr Boxell’s presentation to go out of his way, after the end of his shift, to find the Senior Emergency Consultant Dr Jackson to discuss the presentation and encourage him to review Mr Boxell. It is worth noting Dr Lindley considered the possible need for investigation by CT scan, though he could not recall whether of the chest or the head.

There were features of the pain history recorded by Dr Lindley which were consistent with, and to a degree characteristic of, AD. First, severe sudden onset central chest pain at 8 out of 10 after 30 seconds. Second, the character of pain was described as ‘sharp’. Third, there was radiation of pain to the left shoulder. Fourth, the reported diaphoresis was consistent with Mr Boxell being unwell. These features fitted well with the presenting symptoms of AD described in IRAD and von Kodolitsch, and by Dr Eddey in his 2013 notes.

Mr Boxell presented to the Hospital with a number of risk factors for AD. He was male, suffered hypertension which was untreated, was a heavy smoker and had a family history of his mother having suffered an abdominal aortic aneurysm in her fifties. The same risk factors applied to the more statistically probable diagnosis of acute coronary syndrome. However, it is hardly the point that risk factors meant the Hospital had to seriously consider and investigate other disorders. It would not be reasonable, given the risk factors and the presenting history, for the Hospital to focus attention only on acute coronary syndrome to the exclusion of other serious or potentially lethal causes for the presentation, including AD. Acting reasonably, it was necessary for the Hospital to keep AD under consideration throughout the course of Mr Boxell’s attendance, when other possible serious causes for his presentation were eliminated or rendered less likely. I accept Dr Eddey’s evidence that there was a need for ongoing clinical curiosity as to the cause for the sudden, severe chest pain suffered by Mr Boxell, and that it was not reasonable to discharge him without a diagnosis before performing a CTA to confirm or exclude AD. I would still reach this conclusion had I found that the family history was not a relevant risk factor.

The history of fluctuating pain and headache were atypical for AD. Mr Boxell did not present with classical features of ripping and tearing pain radiating to the back, there were no distinguishing signs identified on clinical examination, and no relevant abnormalities on ECG or chest x-ray. Mr Boxell’s symptoms subsided, and from 11:00am his observations were relatively normal. The defendant’s experts all relied on the absence of these classical symptoms, clinical signs or abnormalities on investigation to conclude that a CTA was not clinically justified. That approach did not take proper account of two defining characteristics of AD. First, that the symptoms and signs are variable and very dependent on the location and extent of the dissection, and the disorder will often mimic other more common disorders. A type A dissection which is limited to the ascending aorta may present with none of the distinctive signs and symptoms, or red flags, on which Profs Mitra and Cameron relied. Second, acute type A dissections are highly lethal. Further, the approach of the defendant’s experts did not take proper account of the degree to which the presenting history and risk factors, considered in combination, pointed to the possibility of a diagnosis of AD.

There are downsides to performing CTAs which include a small risk of developing cancer later in life, risks of suffering impaired kidney function or an adverse reaction to the dye, and complications associated with incidental findings. There is a cost to the health system in terms of patient prioritisation and potential delay in access to investigations and management of emergency patients. However, the cost of CTAs should not be overstated. To a greater or lesser degree there will be similar costs which attach to other radiological investigations. Further, account should be taken of the cost of not performing the investigation. In a letter published in Emergency Medicine Australia in 2013, Profs Mitra and Cameron noted costs of discharging chest pain patients with a recommendation for outpatient stress test, rather than performing the test while the patient was in emergency, included the high frequency of health care utilisation by discharged patients, patients re-presenting to emergency before outpatient testing is performed, adverse patient outcomes following discharge, costs and inconvenience from fragmented care, and poor patient compliance with recommended outpatient testing. While the force of these considerations may be somewhat different in the case of CTA for investigation of AD, the analysis by Profs Mitra and Cameron show that there will be benefits from undertaking investigations to confirm or exclude serious diagnoses while the patient is in emergency. I note Klomp found that absence of AD in the differential diagnosis was associated with use of more imaging tests. I accept Dr Eddey’s evidence that a CTA is a common investigation performed multiple times daily at busy hospitals. Further, it is a substantial overstatement to propose, as Profs Cameron and Kelly did, that acceptance of the plaintiffs’ case would result in CTAs being performed on any patient with a ‘twinge of chest pain’, or on the 30,000 chest pain patients who present to emergency in Victoria each year.

In von Kodolitsch, which involved over 41,000 patients who presented to emergency with acute chest pain, back pain or both, nearly 39,000 patients were excluded because an alternative diagnosis was established by routine evaluation. The remaining patients were jointly considered by two experienced emergency physicians, and those whose symptoms that were not clinically suspicious of AD were excluded. I infer patients presenting with aortic pain were included in the final study group of 250, 128 of whom were diagnosed with AD. As previously stated, Mr Boxell’s presenting history met the description for aortic pain used in the study. I accept that most often there will not be an opportunity in emergency for chest pain patients to be screened by two experienced physicians, and that the results in von Kodolitsch may not reproduce the circumstances experienced in Victorian emergency departments in other respects. However, subject to these riders, the study does serve to illustrate the substantial overstatement by Profs Cameron and Kelly of the cost and burden on the health system of investigating patients such as Mr Boxell by CTA. I accept Dr Eddey’s evidence that the decision to perform a CTA is evidence based, and that it is done to diagnose a serious condition, not in cases of more minor pain.

I have taken account of the matters in s 48(2) of the Act. On the basis of the presenting history and risk factors, AD should have been considered with a high level of suspicion during Mr Boxell’s presentation at the Hospital emergency department on 6 October 2013. Reasonable care required that the Hospital confirm or exclude AD by performing a CTA before Mr Boxell was discharged on that day. Because it failed to do so the defendant was negligent.

Conclusion

I find in favour of the plaintiffs in relation to the issues to be determined to this stage of the trial. I will hear from the parties as to the appropriate orders.

SCHEDULE OF PARTIES

VICKI BOXELL	First plaintiff
- and -
CAITLIN ROSE (BY HER LITIGATION GUARDIAN VICKI BOXELL)	Second plaintiff
- and -
TIMOTHY BOXELL (BY HIS LITIGATION GUARDIAN VICKI BOXELL)	Third plaintiff
- and -
STEPHANIE BOXELL (BY HER LITIGATION GUARDIAN VICKI BOXELL)	Fourth plaintiff
- and -
PENINSULA HEALTH	Defendant

[2019] VSC 830

17 December 2019