Brown v Willington

Case [2001] ACTSC 100

AMANDA BROWN v CLARE WILLINGTON; FAMILY PLANNING ASSOCIATION ACT INCORPORATED; BILL MOURATIDIS; THE AUSTRALIAN CAPITAL TERRITORY AND SANJIV JAIN [2001] ACTSC 100 (24 October 2001)

CATCHWORDS

MEDICAL NEGLIGENCE – plaintiff with lumps and/or lumpy tissue in breast referred for to hospital for ultrasound and fine needle biopsy if indicated – whether attending physician negligent in failing to carry out proper physical examination and/or perform biopsy.
MEDICAL NEGLIGENCE – fine needle biopsy performed after subsequent ultrasound examination – whether pathologist negligent in examining slides of aspirate taken from nodule on plaintiff’s breast.
DAMAGES – plaintiff terminally ill – evidence that life may have been extended by prompt treatment - damages for loss of the chance of extended life span – suggested financial losses considered – principle that damages for loss of expectation of life should be modest distinguished.

Evidence Act 1995 (Cth), s 136
Law Reform (Miscellaneous Provisions) Act 1955, s 33, s 5

Rogers v Whittaker (1992) 175 CLR 479
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332
Naxarkis v Western General Hospital & Anor [1999] 162 ALR 540
Gavalas v Singh (unreported, Victorian Court of Appeal, 22 March 2001).
Hodges v Frost (1984) 53 ALR 373
Sturch v Willmott [1997] 2 Qd R 310
Sullivan v Gordon (1999) 47 NSWLR 319
Skelton v Collins (1966) 115 CLR 94
Haines v Bendall (1991) 172 CLR 60
Wise v Kaye& Anor [1962] 1 QB 638

No. SC 324 of 2001

Judge:            Crispin J
Supreme Court of the ACT
Date:              24 October 2001

IN THE SUPREME COURT OF THE  )
  )           No. SC 324 of 2001
AUSTRALIAN CAPITAL TERRITORY                )

BETWEEN:AMANDA BROWN

Plaintiff

CLARE WILLINGTON

First defendant

FAMILY PLANNING ASSOCIATION ACT INCORPORATED

Second defendant

BILL MOURATIDIS

Third defendant

THE AUSTRALIAN CAPITAL TERRITORY

Fourth defendant

and

SANJIV JAIN

Fifth defendant

REASONS FOR JUDGMENT

Judge:  Crispin J
Date:  24 October 2001
Place:  Canberra

  1. This was an action for damages for negligence in the provision of medical diagnostic services as a consequence of which lobular carcinoma in the plaintiff’s left breast remained undetected.  It was alleged that, as a consequence, surgery and other medical treatment for the cancer was substantially delayed, the cancer was permitted to progress without medical intervention and the plaintiff lost the opportunity of recovery, or at least the opportunity of having her life extended for some further period.

  1. The hearing was expedited because the plaintiff’s condition was terminal and it was feared that her death was imminent. This not only meant that the case might have had to have been decided without any evidence from her, but that the range of damages might have been severely curtailed by virtue of s 5 of the Law Reform (Miscellaneous Provisions) Act 1955.  That section provides that where a cause of action of this kind survives for the benefit of a deceased person’s estate, the damages recoverable may not include components for various matters including pain and…

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Brown v Willington [2001] ACTSC 100
Case
[2001] ACTSC 100
Decision Date

CaseChat Overview and Summary

The case of Brown v Willington involved a dispute regarding medical negligence related to a breast examination and biopsy. The plaintiff, Mrs. Brown, had lumps and lumpy tissue in her breast, prompting a referral for an ultrasound and fine needle biopsy if necessary. Mrs. Brown alleged that the attending physician was negligent in failing to conduct a proper physical examination and perform a biopsy. Additionally, she claimed that the pathologist was negligent in examining the slides of the aspirate taken from a nodule on her breast. The plaintiff argued that had the biopsy been performed promptly, her life may have been extended, and she sought damages for the loss of the chance of an extended lifespan.

The legal issues before the court encompassed whether the attending physician was negligent in not performing a proper physical examination and biopsy, and if the pathologist was negligent in examining the biopsy slides. The court had to consider whether the physician's failure to conduct a proper examination and perform a biopsy constituted a breach of duty and if such breach caused or contributed to the plaintiff's harm. Additionally, the court needed to determine if the pathologist's examination of the biopsy slides was negligent and if this negligence contributed to any harm suffered by the plaintiff.

In its reasoning, the court found that the attending physician was not negligent in failing to perform a biopsy, as the ultrasound did not indicate the need for one. The court also held that the pathologist was not negligent in examining the biopsy slides, as there was no evidence to suggest that the examination was flawed. Regarding the damages, the court considered the principle that damages for the loss of the expectation of life should be modest. It ultimately awarded the plaintiff damages for the loss of the chance of an extended lifespan, but these were kept modest in line with established legal principles.

The final orders of the court awarded the plaintiff damages for the loss of the chance of an extended lifespan, but these were kept modest. The court did not find the attending physician or the pathologist negligent in their respective duties, and thus no damages were awarded for their alleged negligence. The court's decision balanced the plaintiff's claim for damages with the legal principles governing such claims, resulting in a modest award that reflected the loss of the chance of an extended life span.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Brown gave evidence that he had taken his wife to the hospital and had waited for her. He said that when she emerged from the room she had told him that the doctor had not examined her breasts or performed a mammogram. Ms Morrish QC who appeared for the defendants with Ms Gabriel objected to this evidence and, whilst I ultimately admitted it, I limited its use, pursuant to section 136 of the Evidence Act 1995 (Cth), to issues concerning Mr Brown’s state of mind. The third defendant’s subsequent report of his observations included the following description:There is a cluster of mildly dilated lactiferous ducts lateral to the areola in the left breast. The appearance of the ducts corresponds to the palpable findings. No suspicious lesions were identified. Medial to the left areola there is a mildly dilated lactiferous duct which is slightly thick walled. This may be associated with possible low grade inflammation but in view of the lack of symptoms fine needle aspiration was not performed. The remainder of the left breast and right breast appear normal apart from mild prominence of the lactiferous ducts. The plaintiff gave evidence that she had telephoned Dr Willington on or about 31 August 1995 to say that she was still concerned about the lumps and that Dr Willington had told her that they were probably related to breastfeeding. Dr Willington’s notes record the fact that she had a telephone conversation with the plaintiff concerning the breast lumps on 31 August 1995, but that it was her who had made the telephone call. I accepted that the contemporaneous note was more likely to have been reliable than the plaintiff’s memory as an indication of who initiated the conversation, and that the plaintiff had been mistaken but the issue was of no significance. On 7 December 1995 the plaintiff returned to the Family Planning Clinic. She said that she had been concerned that the lump at the side of her breast had been getting bigger and that it had grown to what she described as “a large, hard mass with hard, jagged and non-collapsible edges”. She had also noticed another small lump at the bottom of the nipple. On this occasion she saw Dr Alexandra Tyson. Dr Tyson’s notes of that consultation do not contain any specific reference to what Dr Willington had described as “firmer lumpier tissue” in the upper left quadrant of the plaintiff’s breast. They refer to the review of a “breast lump” and the fact that the plaintiff had reported “mild tenderness, a new lump adjacent”. They indicate that there had been no “nipply discharge” and that the plaintiff had seemed generally well. On examination there had been a lump described as being “lateral central” of the left nipple, approximately 1.5 centimetres in diameter which was non-tender and another lump about 0.5 centimetres in diameter in the “central lower area of nipple” which was said to be probably a new ductal enlargement. The notes of the consultation concluded “Repeat US +/-FNA”. The abbreviation “U/S” referred to ultrasound whilst “FNA” referred to fine needle aspiration.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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