Carney v Newton
[2006] TASSC 25
•24 April 2006
[2006] TASSC 25
CITATION: Carney v Newton [2006] TASSC 25
PARTIES: CARNEY, Deborah Katherine
v
NEWTON, Robert
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 618/2004
DELIVERED ON: 24 April 2006
DELIVERED AT: Launceston
HEARING DATE: 6, 7, 8, 10, 14, 15, 16, 17 and 20 March 2006
JUDGMENT OF: Crawford J
CATCHWORDS:
Torts – Negligence – Proof of negligence – Sufficiency of evidence.
Aust Dig Torts [80]
REPRESENTATION:
Counsel:
Plaintiff: P W Tree SC and J F Matthews
Defendant: K B Procter SC and A J Denehey
Solicitors:
Plaintiff: Jo Matthews
Defendant: Murdoch Clarke
Judgment Number: [2006] TASSC 25
Number of paragraphs: 55
Serial No 25/2006
File No 618/2004
DEBORAH KATHERINE CARNEY v ROBERT NEWTON
REASONS FOR JUDGMENT CRAWFORD J
24 April 2006
The plaintiff sued the defendant for damages for breach of his duty of care as a general medical practitioner arising out of her consultation with him as a patient on 26 January 2002. It is admitted that he owed a duty to her to exercise reasonable care when examining, diagnosing, advising, managing and treating her. She alleges that he breached that duty by:
(a)failing to properly diagnose that the findings of a gritty area in the upper outer quadrant of her right breast was a possible sign of breast cancer;
(b)notwithstanding the findings of his examination, advising her that she could safely conceive;
(c)failing to advise her to attend upon him for monitoring of the gritty area detected upon examination;
(d)failing to refer her for radiological imaging and/or biopsy of her breast.
It is also her case that when she next consulted the defendant on 28 October 2002, he breached the duty he owed her by:
(d) diagnosing that she was suffering from mastitis;
(e) advising her to self-administer ultrasound.
There was a previous trial of the action before a jury, following which an appeal resulted in an order that there be a new trial. As a consequence, the evidence of most, if not all, of the witnesses was given by them for a second time. Therefore, they had significant experience in giving evidence and it is likely that they knew full-well the substance of much of what they would be asked by counsel, both in evidence-in-chief and cross-examination.
The plaintiff was born on 19 January 1968 and was 34 years old at the time of the consultation with the defendant on 26 January 2002. She commenced to study medicine at the University of Tasmania in 1986 and graduated in 1993. She was then an intern and resident at a Burnie hospital for two years. Shortly after commencing her time there she assumed the duties of paediatric registrar. It was in fact her ambition to become a specialist paediatrician. She then worked for about a year at the Sydney Children's Hospital as a paediatric resident and obtained a diploma in paediatrics, before returning to north-west Tasmania. She married her present husband, James Leonard Charles Ansell, on 25 January 1997. She worked as a general practitioner for four years in all, the first two years or thereabouts as an employee and trainee at a Devonport general practice and the last two years, until about the end of 2000, as an employee of a Hobart general practice. At about the end of 1999 she become a Fellow of the College of General Practitioners. Early in 2001 she became a senior paediatric registrar at the Royal Hobart Hospital and maintained that position until late in 2003.
A major issue between the parties concerns whether the defendant detected an abnormality in the plaintiff's right breast in the course of his examination of her on 26 January 2002. She asserts that he did and he denies that.
Concerning that issue, I will relate first the substance of the evidence of the plaintiff and her husband and make comments as I do so. She had one child aged about 1½ years when she and her husband decided to have a second child. Before going further, she decided to consult the defendant, who had been her general medical practitioner for a number of years, for a pre‑pregnancy well woman check. Particularly because she had been a general practitioner, she was familiar with what was involved. She wished to make sure that everything was safe for her to conceive. She asked whether she needed another pap smear, to which the defendant replied that it was not necessary but he should perform a general check. (A pap smear was considered unnecessary because one had been taken 13 months previously.) He took her blood pressure and weighed her. He asked her to get onto the couch for a breast examination, which she did, removing her upper garments. He had a cursory look at her breasts and asked her to lie down. She reclined on her back on the couch with her hands behind her head so that her breasts were fully exposed for examination. With the flat surface of his hand he examined all four quadrants of the left breast and then all four quadrants of the right breast. It was her evidence that he examined her right breast a little more thoroughly than the left and commented: "Oh, there's a bit of a gritty area here." She said: "What?" He replied: "Nothing to worry about, no it's fine. It's just a little bit if grittiness. We'll keep an eye on that." She then said: "Well, if I'm going to keep an eye on it I'd better have a feel and see what it is." She had been unaware of what was there. Using her left hand, she palpated the region, felt the gritty area, and said: "Oh, okay, I'll keep an eye on it." He said: "Yeah, in your age group, Deb, it's most likely to be a fibroadenoma and nothing to worry about, so just keep an eye on it." It was her evidence that she took that to mean that she should perform her usual breast self‑examinations and return if there were any significant changes in the region in question. She sat up and put her upper garments on again. The defendant conducted an ear, nose and throat examination and gave her a referral for blood tests, telling her: "There you go, okay. Take care and a copy of the results will be sent to you." In cross-examination, the plaintiff was asked to repeat her version of the consultation and her evidence was largely the same as it was before. A slight difference was that she agreed that on two occasions the defendant said that "we" should keep an eye on it, whereas in her evidence-in-chief she said that it was said once.
An unusual aspect of her evidence was that she related the conversation verbatim. Most witnesses could not and would not relate verbatim a conversation that occurred four years before, because they would not remember the precise words used, nor would they represent that they could do so. I have experienced such verbatim recounting in a few people in the past and experience suggests that most of those who do that do not in fact remember verbatim what was said, it is just their way of relating past conversations. When asked by the defendant's counsel whether her evidence had in fact been a verbatim rendition of the conversation, the plaintiff said that the key words were certainly there and what she had said was as close to verbatim as her memory would allow. I conclude that she has reconstructed the conversation, at the very least.
The plaintiff described the gritty area in the following way. It was in the right upper quadrant of her right breast. The region was firmer than the surrounding breast tissue, but still soft and slightly rubbery. Its edges were not particularly well defined. She said that therefore, it could not necessarily be said to be a lump. The inside part of it felt slightly lobulated, by which she meant "like separate areas, but coalesced, so joined together". She said that "within that diffuse area that I was feeling, I could feel the grittiness that he had described". She said it felt like grains of par-cooked rice, not particularly hard but definitely small and harder than the surrounding tissues. She further described it as "par-cooked rice, contained within in a very firm custard sort of consistency". It was not a defined circular area but its height and width were about two to three fingers wide in all, which she measured to be about 2½ centimetres. I had difficulty understanding her reference to firm custard in the context, but in cross-examination she described the area as generally firmer than the surrounding tissue but still relatively soft and mobile and not attached or tethered to any underlying or overlying structure, and contained within it were small lobules or small regions that were more or less defined by extra fibrous material within them. She added that "contained within that itself was a gritty sensation when palpated more firmly, and that felt like grains of rice".
Asked whether she was alarmed to feel something like that, she indicated that she was not. She said that initially she "sort of pricked up my ears" when he said "gritty", but when he said that it was likely to be a fibroadenoma and that it was nothing to be concerned about she was not concerned. She emphasised that she trusted him as an experienced general practitioner and respected his opinion that it was likely to be a fibroadenoma.
There are two aspects concerning that evidence that cause me to have some doubt about its veracity. It was her evidence that as a general practitioner who had conducted many well woman checks, perhaps three or four a week, if she found an abnormality in a woman's breast it was her practice to refer the patient, depending on her age (a mammogram may not be useful for a young woman), for the so-called "triple test" of an ultrasound, mammogram and fine needle aspiration by a surgeon. The only exception to which she referred was if she thought the abnormality may have been due to a hormonal change only, in which case she might instead merely ask the patient to return for review after her next menstrual cycle. Her evidence was clear that if she had been the treating doctor and detected what she said the defendant detected in her breast, she would have referred the patient for the triple test. Early detection invariably leads to a better outcome with cancer. Her evidence accorded with the evidence of other medical witnesses that standard practice required further investigation in the circumstances described by the plaintiff. It was not only her evidence that it would have been wrong and contrary to standard practice not to investigate further. Accordingly, although I accept that she may well have had respect for the defendant as an experienced general practitioner, who had been her general practitioner since about 1993, and that she had respect for his opinions, I would have expected her to have at least raised with him the desirability of further investigation if they had in fact detected what she described. Further, the evidence is overwhelming that whether a suspected fibroadenoma is indeed that, and not a malignant tumour, cannot be determined by palpation and that it is standard practice to refer a patient, in the case of a suspected fibroadenoma, for the so-called triple test. I find that the plaintiff would have done so if she had been the treating doctor faced with a patient with a suspected fibroadenoma. I could more readily accept that she failed to raise the matter with the defendant, if it had been her evidence that she was fearful that she might have cancer but did not want to know it, that is to say, that she was in a state of denial, but that was not her evidence or her case. I find that the defendant was also well aware of the standard practices I have described. Therefore, I regard it as unlikely that neither of them would have raised the desirability of further investigation.
The other aspect to which I referred, concerns the plaintiff's description of what was in her breast and her evidence that the defendant expressed his opinion, and she accepted it, that it was likely to be a fibroadenoma, a form of benign tumour. The medical evidence established that upon palpation a fibroadenoma typically feels like a well-defined, firm and rubbery lump with a smooth surface, which is mobile, to the extent that it is sometimes called a breast mouse. A sensation of grittiness on palpation is not a characteristic feature of a fibroadenoma. The plaintiff's description of it as soft, like firm custard, with edges that were not particularly well defined, suggest that something other than a fibroadenoma was present, regardless of whether grittiness was also to be felt. Therefore, it is unlikely that both the plaintiff and the defendant would not have had serious doubts about it being a fibroadenoma and for that reason would not have raised for consideration the question whether further investigation by means of a triple test was desirable. On the plaintiff's evidence, it appears that neither of them considered the matter at all.
Her lack of alarm was not shared by her husband, Mr Ansell, if his evidence is to be believed. I will deal with it shortly, but will first relate her evidence of what happened when she got home. She said that she met her husband in the hallway and he said: "Well is everything okay." She replied: "Yeah, everything's fine, he just – he found a bit of a gritty area in my right breast." Her husband responded: "What." Her evidence was: "I said, 'well it's okay, he said it's just – it's probably a fibroadenoma', or – I can't remember exactly whether I said that to him, I was trying to explain to him, 'it's probably nothing to worry about, it's just probably a fibrousy, fatty thing, but why don't you have a feel as well so that there's the two of us trying to make a comparison to make sure nothing changes'." He said: "Okay, well pop into the bedroom." She did so and disrobed, and guided his hand to the area in question. He said: "Oh okay, well we'll keep an eye to that then. Are you sure that everything's all right?" She replied: "Yes, I'm sure, he said everything's fine, just keep an eye to it." I had a feeling of unreality when listening to that evidence because I could not believe that the plaintiff was accurately recounting verbatim what was said between them. However, in that regard, I refer to my earlier comment about the verbatim relating of long past conversations.
Mr Ansell's evidence of what happened was as follows. They met in their hallway on 26 January 2002. The plaintiff told him that the defendant had found an area of what she described as grittiness in her breast. He became alarmed because the possibility of cancer came to his mind. He said: "What!" She said, "look, he said that it's all right, it's nothing to worry about", adding that "we'll keep an eye on it." He described the plaintiff disrobing and getting on the bed and of him palpating the breast. He said that he detected an abnormality in the breast and that the mental picture he formed was like small pebbles at the bottom of a fish tank. He referred to it as lumpiness in an area that extended for the width of between two and three fingers of his right hand. The similarity of that measurement with that of his wife's was striking. He said that it was irregular in shape, but if he had to classify the shape it was close to being circular. He described its height and width as equivalent to that of a crown, the old Australian coin, which I note to be a little less than four centimetres in diameter. In cross-examination, counsel for the defendant endeavoured to have Mr Ansell explain the approximate number of small "pebbles at the bottom of a fish tank" he was describing, but he declined to do so, other than to say that there were more than one. He would not say whether there was as many as 10. He preferred a description of lumpiness to one of grittiness. He said that he could not remember his wife telling him about it being likely to be a fibroadenoma, but accepted that she may have done. He said that once she said it was nothing to worry about, that had caught his attention. He maintained in cross-examination that what had happened on 26 January 2002 was fresh in his mind because they were going to keep an eye on what was there and because at the time he had thought, "my God, what's this in her breast?"
The plaintiff did not raise the abnormality in her breast with any other medical practitioner between 27 January 2002 and 27 October 2002. She consulted Dr Mayhead, a general practitioner, on 5 February, seeking a certificate for time off work because of upset over the death of a young patient. She also consulted her obstetrician more than once during that period. She fell pregnant in May, suffered a miscarriage on 26 June and fell pregnant again in early July, eventually giving birth to her second child, Lily, the following March. Her evidence was that she was not concerned about the abnormality in her breast during the period to October because she had been reassured by the defendant's statements to her at the consultation on 26 January and she detected no relevant changes in the abnormal mass in her breast until late October. Asked why she did not consult the defendant again during that period notwithstanding that she claimed that he had said that "we'll keep an eye on that", her response was that he had made no specific request that she do so and she had not thought that surprising because he had said that it was likely to be a fibroadenoma and nothing to worry about. Pressed by the defendant's counsel to explain how the defendant was going to "keep an eye on it" if she did not present herself to him, her answer was that she had interpreted "we'll keep an eye on it" as simply meaning that she would conduct regular self‑examinations of her breast and present herself to him if she detected any change. I make the observation that it would have been apparent to her for most of the time after 26 January that whatever was present in her breast was not attributable to cyclical, hormonal change.
Asked whether she continued to undertake self-examination of her breast between 27 January and 26 October 2002, she said that she did so "out of normal human habit", a response indicating that she was unconcerned about the abnormality in her breast, an attitude that was not shared by her husband, according to his evidence. She said that for the next couple of days she would have "checked it out" in the shower each morning, but it fell to the back of her mind to the extent that she probably examined her breasts weekly and then maybe monthly. She said that when she was pregnant and her breasts were very sore, she did not necessarily perform a thorough examination. She detected no material change, other than that both breasts became slightly larger and very tender due to pregnancy.
She made no mention of her husband examining her breasts during the period in question and his evidence about it came as a surprise, to the extent that there immediately arose in my mind the possibility that he, if not both of them, was concocting the evidence. He said that because she had said that the defendant had advised her to keep an eye on it, he palpated the breast once a fortnight. He detected no change, other than that both breasts became fuller. That coincided with her pregnancy and was consistent with what had occurred when she was pregnant with their first child. He said he continued to palpate the area of abnormality on a fortnightly basis until October, by which stage the breast was red and angry and sensitive to touch to such a degree that he was no longer able to exert the same amount of pressure so that he could feel the lump. I have difficulty understanding why she would have given no evidence of that regular palpation by him, if it took place. His evidence about it did not accord with the effect of her evidence that she was largely unconcerned.
The plaintiff's evidence was that on 24 October 2002, when undressing after a day at work, she noticed a slight redness in the upper outer quadrant of her right breast. She attributed it to her breasts englarging with her pregnancy and the underwire of the cup of her brassiere rubbing the area. However, on the morning of 25 October the redness in the breast was still there and that caused her to become more alert, particularly because the change was in one breast only. She did not palpate the area because of tenderness. (She made no mention, as her husband did in his evidence, that he did not do so either for the same reason.) She worked that day. On 26 October she became concerned that the cause may have been cancer. The area of redness had increased slightly and it was becoming more tender. The area was the same as the gritty area previously described. Although the possibility of mastitis came to her mind, the fact that she was not lactating and had no fever suggested otherwise, because mastitis in a non‑lactating woman was unusual and the condition usually produces an increased body temperature because of infection. Her concern that she may have had cancer increased. She said that on 27 October the redness had increased and the area was indurated, by which she meant slightly boggy, and quite tender and considerably enlarged.
On 28 October she consulted the defendant. By the time of the consultation the area in question had become significantly red, swollen, tender and indurated and although the area looked to be consistent with mastitis, the absence of a raised temperature suggested otherwise to her. Her evidence was that she informed the defendant that she thought she had mastitis and he looked at her breast and thought the same. She pointed out to him that it was in the area he had told her to keep an eye on. He then said "then we'd better have a look" and he had her get onto the couch, where he conducted a more thorough examination that included a very gentle palpation. It was also her evidence that she remarked that she was concerned that she did not have a fever and that she had not had mastitis whilst breastfeeding her first child. She said that she asked whether mastitis in pregnancy when not lactating was a common thing, to which the defendant responded that it was not uncommon (examination-in-chief) or "I've seen it many times" (cross-examination). He reassured her by telling her not to worry about it. He prescribed an antibiotic, flucloxacillin, to be taken 500 mgs three times a day and told her that because she was worried about it, he would refer her for a diagnostic ultrasound, but that would have to wait at least two weeks, until after all the swelling and induration had subsided. He gave her a referral for that to happen. It was also her evidence that he suggested that the use of therapeutic ultrasound could be of some benefit in shortening the duration of the mastitis and alleviating the pain. She asked if it would be in order for her to self-administer the therapeutic ultrasound with her own machine and he expressed agreement with that. She left his surgery having been told to finish the prescribed course of antibiotics and administer therapeutic ultrasound at least twice a day, and once all the swelling and induration had subsided, to take herself off for a diagnostic ultrasound to make sure there was nothing underlying. Despite her concern that she may have had cancer, she had made no mention of it to the defendant in a direct way.
She administered the therapeutic ultrasound and took the antibiotics for 48 hours. As the swelling, tenderness and redness did not subside she spoke to a pharmacist and accepted her advice to increase the dose of the antibiotic. With no improvement, she was becoming increasingly concerned and her anxiety drove her to make an appointment for a diagnostic ultrasound to be performed on Friday, 1 November. She telephoned the defendant to tell him of what she had done. When the ultrasound was undertaken, the radiologist told her that she appeared to have mastitis that had formed a large abscess with a tail pointing towards the skin and that the abscess needed to be drained. The radiologist expressed a 90 to 95 percent assurance that there was an abscess, according to the plaintiff.
Desperate with her fear concerning cancer, she made an appointment to see a surgeon, Mr Wilkinson, on Monday, 4 November, and telephoned the defendant for a referral, which was to be sent by fax to the surgeon. On that day she was frantic with worry and at times completely distracted. A paediatric consultant, Dr Williams, who was her friend, offered to take her out to lunch. While in the city, she told Dr Williams of her concern in an indirect way. Her evidence was that apart from vaguely mentioning her concern to her husband, she had not told any person, and even when she communicated it to Dr Williams, she made no mention of cancer, expressing instead her concern that there might be some underlying, sinister thing. It was her evidence that she told Dr Williams that her problem had started in an area where an abnormality had been found in January when she went to see her general practitioner. Dr Williams gave evidence confirming that, at least to an extent.
Like most, if not all of the witnesses, Dr Williams gave evidence at both trials. When giving evidence before me, there was an aspect of it that differed from the evidence she gave at the first trial on 18 November last. On that occasion it was her evidence that the plaintiff had told her that there had been a subtle abnormality in her breast about which she had consulted her general practitioner in the past, because she was not sure what to do with it, and her general practitioner had been similarly unsure. That version of the consultation did not accord with the plaintiff's evidence of it. However, having learned after the first trial that her evidence about that had differed from that of "other witnesses", which I took to be a reference to the evidence of the plaintiff at the first trial, Dr Williams altered her evidence before me to say she had merely been told that in a past check there had been an abnormality in the breast which had been discussed with the general practitioner, the difference being that there was no suggestion of the plaintiff being aware of the abnormality when she presented herself to the general practitioner. Dr Williams said that she was not clear in her recollection about the matter, but she accepted that when giving evidence at the first trial it was her belief that she had been told by the plaintiff that she had taken her problem to her general practitioner.
Mr Wilkinson performed a biopsy on 4 November. Later that afternoon a diagnosis was made of a high grade adenocarcinoma, an inflammatory cancer. On the following day she consulted a physician and oncologist, Dr Roger Kimber. To put the plaintiff's evidence about that consultation into its proper context, it is more convenient to relate first Dr Kimber's evidence of the history he obtained from her. He was called as a witness by the defendant. He does not recall the terms of their conversation over three years ago and his evidence about it was confined to the handwritten notes that were made by him at the time of the consultation and his interpretation of them in the light of the context in which the notes were made. They recorded that she had been referred to him with regard to a carcinoma in her right breast, that a fine needle aspirate had proved positive and that she was 19 weeks' pregnant. With a side heading of "History" he commenced to record as follows: "Vague changes since early pregnancy Past 11/7 some discomfort, inflammation induration erythema → mass". He explained that the note meant that he was told by her that there had been vague changes in her right breast since early pregnancy and for the past 11 days she had noted increasing discomfort, inflammation and some disturbance of the texture of the tissues there and then had noted the presence of a lump, described as a mass. On the same day, Dr Kimber reported by letter to Mr Wilkinson, who had referred the plaintiff to him. The letter having been prepared on the same day as the consultation, it is likely that it was correct as to the history that was related by the plaintiff. Dr Kimber commenced the letter with the following:
"Many thanks for asking me to see our 34 year old colleague regarding her right breast cancer. She had been aware of some irregularity in the right breast since early in her pregnancy. She is now 19 weeks. During the past 11 days however there was discomfort and the appearance of a palpable mass, and in the past 5-7 days an inflammatory component became apparent. All this culminated in aspiration cytology of what was thought to be an abscess but proved to be a high-grade malignancy (adenocarcinoma with comedo components). Past health has been excellent and family history noncontributory."
The significance of Dr Kimber's notes, letter and evidence is that when asked on 5 November 2002 for the history of the cancer in her right breast, the plaintiff referred to being aware of an irregularity since early in her pregnancy only, that is to say, possibly as early as May 2002 but no earlier, and she made no mention of the irregularity being detected as early as 26 January when she consulted the defendant. If that is correct, her case is substantially weakened.
It was put to Dr Kimber by the plaintiff's counsel that what he had been told by her was that there had been changes in both breasts since early pregnancy and that Dr Kimber could not be confident that she had not intended to communicate that. Under some pressure from the plaintiff's counsel, Dr Kimber was prepared to accept the possibility of that and he agreed that his handwritten notes did not, in their express terms, restrict the observation of an irregularity early in the pregnancy to the right breast. Nevertheless, it was clearly his belief that the history related to him by the plaintiff concerned the right breast only. He emphasised that "the whole consultation was regarding the right breast" and that "its fairly obvious we were talking about the painfully inflamed frightening disease in the right breast". Dr Kimber agreed that at the time of the consultation the plaintiff was visibly devastated and frightened. It was her case that she was misunderstood, and it was her evidence that what she told Dr Kimber was that she had become aware of fullness in her breasts since early in pregnancy. She denied telling him that she had become aware of an irregularity in her right breast only. However, she agreed that as a medical practitioner she would not have described fullness of the breast by reason of pregnancy as an irregularity.
Mr Ansell was also present at the consultation with Dr Kimber. His evidence was that the plaintiff told Dr Kimber that she had noticed a change in both breasts in May 2002 and she had not confined her statements to her right breast.
I have no doubt that before they gave their evidence before me, both the plaintiff and her husband were aware of the damaging effect of Dr Kimber's notes and of the evidence he was likely to give if the defendant tendered the notes and called him as a witness. I find it extremely likely that their evidence about the issue was deliberately concocted by them in an endeavour to overcome the damage. I find that in the course of relating the history of the cancerous condition in her right breast, the plaintiff communicated to Dr Kimber, and intended to do so, that early in her pregnancy she had noted an irregularity in her right breast. Such a communication inferred that was the earliest point in time at which she detected an irregularity. One of my reasons for making these findings is to be found in another finding I make that when relating the relevant history of the carcinoma she made no mention of the detection of an abnormality or irregularity in her breast on 26 January in the course of her consultation with the defendant. Dr Kimber's notes did not record that she mentioned it, nor did she or Mr Ansell claim in their evidence that she did so. Before leaving this issue I note that Dr Kimber demonstrated by his evidence a fondness for the plaintiff, respect for both of the parties in this case and a preference for not having been compelled to give evidence about the matter. I regard him as an impartial and trustworthy witness.
It was submitted by the defendant's counsel that an explanation for what the plaintiff may have said to Dr Williams about the abnormality in her breast being discussed with her general practitioner is that she had been aware of an abnormality in her breast since about May 2002 but had done nothing about having it investigated, and in a frantic state, fearful that she had cancer, she sought to avoid guilt being attributed to her and chose Dr Newton to fill the role of scapegoat. I accept that is a possibility and that it is also possible that her mention to Dr Williams of her past consultation with her general practitioner was initially intended to assuage to some extent her own feelings of fault and that at some time thereafter, her references to the defendant developed into direct accusations of blame against him. I add that I find that Dr Kimber's evidence more cogently supports the defendant's case than Dr Williams' evidence supports the plaintiff's case.
There is evidence establishing that on 23 December 2002, the plaintiff related to a treating medical practitioner a version of the consultation of 26 January and of subsequent events that was similar to the version that forms the basis of her case. On that day she consulted Dr John Ward, a radiation oncologist who became involved in the delivery of radiation therapy to her following the right mastectomy that was performed on 8 November and subsequent chemotherapy. He no longer has any memory of the history of her condition as related by her that day, but the material part of his handwritten record of it was as follows:
"Check in Jan. Breasts clear but
? gritty area RUOQ.
Fibroadenomata.
→ Preg. Misc. June.
Breast "full".
→ Preg. – Fullness – attrib. to preg.
Nov. Flare of redness outer ® breast.
Afebrile – whole breast red."
In evidence, Dr Ward interpreted some of that and consistent with his interpretation I conclude that the plaintiff gave him a history that included that in a check in January, her breasts were clear but there was a query concerning a gritty area in the upper outer quadrant of the right breast. She referred to either "fibroadenomata" or "fibroadenomas", that is to say the plural of fibroadenoma. His evidence was that he would not have written down the plural form if she had not referred to more than one fibroadenoma. He said that although it is not what he wrote, he interpreted that part of his notes as meaning that she told him that the "? gritty area" was [or was thought to be – my note] more than one fibroadenoma. His assertion that she referred to more than one is, of course, not what she says now, for it was her evidence that the defendant told her that there was likely to a fibroadenoma. Dr Ward's interpretation continued that she told him she became pregnant and miscarried in June and that her breasts were full, and that there was a second pregnancy, at which time her breasts were full which she attributed to the pregnancy. In November redness flared in the outer right breast. She did not have a raised temperature and then the whole breast became red.
For the purpose of what I am presently considering, it is unnecessary to relate all of the history of the suffering and treatment undergone by the plaintiff. She had chemotherapy and radiotherapy and there were some extremely nasty complications. In about March 2003 she suffered a number of pulmonary emboli and gave birth to her second child, Lily. Because of the effects of chemotherapy she was unable to breast feed and unable to establish a close bond with Lily. She became depressed. Most of her hair fell out because of the treatment she was receiving. Between August 2003 and May 2004 she worked for extremely limited hours as a general practitioner. She was not then receiving treatment. In May 2004, it was discovered that the cancer had metastasised, secondary tumours being found in the pleura and lung. The discovery amounted to a death sentence for her. She has not worked since. She has undergone several further courses of chemotherapy and they continue. Many drugs are administered daily. Her suffering has been considerable.
The defendant continued as her general practitioner for some time. According to his notes and evidence, she consulted him on 24 April 2003, when they had a long talk about coping with the cancer. On 9 March 2003 he provided her with a referral to Dr Kimber, without a consultation. On 29 October 2003 she consulted him in regard to a fractured right olecranon process (elbow) and they talked about her cancer. It is the defendant's case that it is unlikely that she would have continued to consult him as her general practitioner if she regarded him as being to blame in some way for her cancer. It does not appear that she consulted him again. There was no suggestion that at any of her consultations with him after 26 January 2002 she suggested that he had failed to correctly diagnose or made an erroneous diagnosis that day, although it was her evidence, as I noted earlier, that on 28 October 2002 she pointed out to him that the redness in her breast was in the area he had told her to keep an eye on.
At some point in time the plaintiff transferred to another general practitioner and at her request, the defendant sent her file to that practitioner. There was no evidence from her of her reasons for changing doctors. (In that regard, counsel for the plaintiff relied on an unresponsive answer by Mr Ansell to a question in cross-examination, but it did not establish the plaintiff's reasons.) The defendant said that he was unaware of her reasons. It was his evidence, which was not disputed, that the first he knew that she was holding him to blame in some way for her cancer was when the writ was served on him. I presume that was in August 2005 from a perusal of the Court's file. There is no reason not to accept his evidence about that.
Counsel for the defendant claimed support for his client's case in a statement of the plaintiff to her solicitor at one time, Mr Webster. It is typed, unsigned and undated. The Court's record notes that Mr Webster was replaced as her solicitor on 10 August 2005, and it follows that the statement must have been made some time before then, and possibly prior to 1 December 2004 when the writ was filed. After referring to her consultation with the defendant on 26 January 2002, the statement continued:
"When conducting the breast exam Dr Newton commented that there was a gritty region noted upon portion in the upper outer quadrant of the right breast. Dr Newton said that 'there is a gritty area there that we should keep an eye on'.
I thought nothing more of it as I had not been referred for any further investigations or had F/U consult recommended. I did however conduct breast examinations monthly after that consult. I noted no further change from 26/01/02 until May 2002 but as I had fallen pregnant then I presumed it was due to hormonal changes of pregnancy."
It was submitted by the defendant's counsel that the reference in the last sentence to there being no further change until May was to a change in the right breast only that was noticed by her in May, and that it is significant that the statement does not refer to changes in both breasts due to pregnancy. Having introduced her statement with a reference to the gritty area having been discovered on 26 January, I do not find the claimed significance. It seems to me that the statement is consistent with her oral testimony, notwithstanding that it may not have referred specifically to apparent hormonal changes in both breasts in May 2002.
Counsel for the defendant also relied on evidence and out of court statements to the media of the plaintiff and her husband which indicated that a purpose of her claim for damages was to secure financial security for their children. That evidence has limited value. While it provides a motive for being untruthful, they both asserted that their evidence was truthful nevertheless.
I turn to the defendant's evidence. After qualifying as a medical practitioner in about 1977, he worked as a general practitioner from 1980. He said that he has seen between 7,000 and 8,000 patients in an average year over a 25 year period and about 30,000 since 26 January 2002. He has performed a great number of well woman checks over that time, which required palpation of a woman's breasts in a search for irregularities. He had been the plaintiff's general practitioner since 1993 and his handwritten notes of her consultations with him were tendered in evidence. They reveal that he conducted well woman checks on her in 1993, 1995, 1997, 1999, 2000 and again on 26 January 2002. He said that he has no recollection of the consultation on 26 January 2002 because there was nothing remarkable about it. I find that understandable having regard to the number of patients he has seen each year over a period of 25 years, and particularly so if there was indeed nothing remarkable about the consultation, as his notes suggest, and if he was not made aware of any complaint arising out of the consultation until over 3½ years had passed. It was his evidence that he can only refer to the notes he made at the time of the consultation to inform himself of what occurred. His notes were as follows:
"– Bloods ante natal (FBE TFT normal Aug. 01.)
wt. 77 kg BP. 120/80 breasts üü skin° ENT° heart s ü.→ lipids BSL Hep BC, HIV."
He explained his notes as follows. It was an examination prior to a pregnancy and "bloods ante natal" indicated that blood testing would focus on hepatitis B, hepatitis C and HIV, because the plaintiff was a doctor who had been exposed to bloods and it was necessary to make sure that she was not a carrier of those diseases, which would be a problem for her proposed pregnancy. He noted in parenthesis that a full blood examination and thyroid function test had been normal in August 2001, and said that for that reason there was no need to repeat them in January 2002. He recorded her weight as 77 kilograms and her blood pressure as 120/80. His record "breasts üü" meant that he conducted a routine breast examination by palpation and concluded that both breasts were normal. That was the usual way in which he recorded that and he believed half the notes of other doctors he had seen recorded that in the same way. (The evidence of one of the plaintiff's medical witnesses, Dr Douglas, who was her friend, that such a manner of recording was imprecise and merely indicated that there were two breasts or lumps, was unimpressive and unconvincing and I reject it. I accept the defendant's evidence as to what it meant.) The defendant explained that the examination involved inspection and palpation of the breasts, the areas of lymph nodes in the axillae and supraclavicular areas. " skin°" meant that the skin was normal, a ü and a ° symbol being interchangeable. "ENT°" meant an ear, nose and throat examination was normal. "heart s ü" meant that her heart sounds were normal. "→ lipids BSL Hep BC, HIV" indicated that her blood was to be tested for cholesterol, blood sugar level, hepatitis B and C and HIV.
He said that a lump in a breast could indicate cancer, but it could also be an abscess, cyst or a fibroadenoma. Palpation would not reveal what it was and his practice was to refer a patient with a lump for the triple test, that would include an ultrasound or mammogram and then referral to a surgeon for biopsy and histological diagnosis. His evidence about that accorded with the evidence of other medical witnesses who were asked about it. He explained that like other doctors, he was paranoid about missing cancer.
Indeed, in almost every respect his evidence accorded with what was plainly a consensus between the medical practitioners. It included that there may be an irregularity in a woman's breast that is not necessarily an abnormality. Women of child-bearing age in particular often experience varying degrees of tenderness, discomfort and even swelling that is hormone related and that tends to be cyclical with their menstrual periods. He said that statistically 77 percent of woman of child-bearing age complain of varying degrees of breast tenderness or swelling in a cyclical fashion and his experience accorded with that. However, he emphasised that if the change was confined to one breast only some pathology was indicated.
I accept the defendant's evidence that if he found an abnormality in a woman's breast it was his practice to record it in his notes of the consultation and what was to be done about it. That evidence accorded with the evidence of other medical witnesses. Asked whether there were circumstances in which he would not record an abnormality he had found, he replied in the negative, explaining that there was no such thing as a safe lump until it had been investigated and that a failure to note it would be an abrogation of his responsibilities as a general practitioner. The purpose of notes being kept is particularly for the future treatment of the patient by the same or another general practitioner. He was insistent that if he had found an abnormality in the plaintiff's breast he would have made a note of it.
It was his evidence that he had never felt anything in a woman's breast that he would have described as gritty. There was consensus about that between medical witnesses. It was only in the plaintiff's evidence that the expression arose, and in the evidence of Mr Ansell when he related what she had said to him on coming home from the consultation. It was also the defendant's evidence that if he had said to the plaintiff "we'll keep an eye on that", it inferred that he had found an abnormality. It followed from that he would have made a note about it. His evidence that a description of grittiness does not conform with the usual description of a fibroadenoma was substantiated by other medical witnesses, as was his evidence that the plaintiff's description of what she felt in her breast at the time did not accord with a fibroadenoma. His evidence about those matters, supported as it was by the evidence of other medical practitioners, raises doubts that an experienced practitioner such as himself, or even the plaintiff, would have thought that what was described by the plaintiff was likely to be fibroadenoma, and that they would not have wanted, or even considered, an ultrasound and biopsy to confirm it.
He agreed in cross-examination that there was a difference between a mere irregularity and an abnormality in a woman's breast. He said that in women of child-bearing age there is a wide variation of normal on breast examination. For example, breasts may change with the menstrual cycle. There may be an irregularity in size on one side compared to the other which is within normal limits, that is to say which is not abnormal. A suspected fibroadenoma in his mind would be an abnormality until biopsy confirmed that it was in fact a fibroadenoma and benign, and it would then become an irregularity in his mind and not an abnormality. He agreed that when examining a woman's breasts an exercise of clinical judgment is involved in deciding whether what is detected as an irregularity should be investigated as a possible abnormality. He gave as an example where that might occur the case of a woman's breasts not being symmetrical, which I understand to be quite common and not abnormal. He accepted that "breasts ü ü" in his notes of the consultation of 26 January 2002 recorded that it was his clinical opinion that there was no abnormality in the plaintiff's breasts and that he cannot say whether he identified something as an irregularity which he concluded was not an abnormality, such as he might have done if the breasts were not symmetrical, because he does not remember the consultation. It was also his evidence that if he detected an irregularity, which he concluded was not an abnormality but which may not have been apparent to the patient, he would ordinarily bring it to her attention. In such event, even though he may have concluded that there was no abnormality, but merely an irregularity, he would nevertheless instruct the patient to regularly conduct a two to three monthly self-examination. However, he emphasised once again that if he identified something he thought may have been a fibroadenoma he would want imaging and a biopsy. He added that "there's a difference between being suspicious of a lump or a mass as distinct from texture, which can vary from side to side in women, and which is in a sense irregular from one to the other but also normal".
It was put to him and he agreed that if he had in fact detected something in the plaintiff's breasts similar to what she described in the witness box, a lobulated area of about two to three fingers wide, it would have required him to exercise a clinical judgment as to whether it was merely an irregularity as opposed to an abnormality. However, he added that "if I found something that was two to three finger breadths wide, a lump that big, I would have sent her for the triple test". He insisted that a "lobulated thickened area of tissue on one side to me would not indicate an irregularity that would be an abnormality to me and I don't have any evidence in my notes that I found it".
That evidence supported the defendant's case. Perhaps to emphasise that, his counsel commenced his re-examination with a question, the defendant's answer to which the plaintiff's counsel relied upon heavily in his closing address. The question included some of the plaintiff's description in evidence of what was in her breast. The relevant passage of his evidence was as follows:
"Dr Newton, could I remind you of this description, and I want to ask you at the end of this whether you regard what is described as an abnormality or as an irregularity.
'When I palpated the area I felt a region that was firmer than the surrounding breast tissue but still soft and slightly rubbery. It wasn't particularly well defined, that is the edges - outside edges of it weren't particularly well defined, so in essence you couldn't say it was necessarily a lump as such, the internal or the inside part of that area felt slightly lobulated and within that diffused area that I was feeling I could feel grittiness. It felt like grains of rice, par cooked rice, not particularly hard but definitely small and harder than the surrounding tissue, so you would say par cooked rice contained within a very firm custard sort of consistency, and that extended for about two to three, not quite three, but two fingers spread the entire area. I'm talking about the width of my fingers and it wasn't a particularly defined circular area but roughly it was about two fingers spread in length and width, so diameter in terms of depth in a breast is very hard to feel so you only get really a two dimensional sensation, you don't actually get sensation of the depth of it.'
And finally:
'The area was mobile, it wasn't actually what we call tethered or stuck down to the surrounding material and in essence the whole region was actually, although firmer than surrounding breast tissue, relatively soft and mobile, apart from the gritty material contained within it.'
Now I know that's a long description but you'll recall I'd indicated I was going to ask you how you would identify that in your mind as between an abnormality and an irregularity? ... There's no defining edge to this - this mass, it's a soft mass, you say, two to three finger widths breadth -
That's part of the description, yes. ... - with soft lobulated structures, or rice grain structures within it -
That's part of the description, yes. ... - well if - if I found something like that on - in a woman's breast on one side only with no comparative structure like that on the opposite side and it was - I would have - it would be one of those ones which I would probably say this is within the area of irregularity, but I'd be instructing a woman to - to do breast self-examination to keep it under surveillance. It sounds like it would be one of those textures within the range of normality, I would have thought, for - for women’s breasts. I have - I have no memory of the examination of Deb - Dr Carney on that day and nothing like that is described in my notes or alluded to. I can only say that the examination on that day I concluded to be normal.
Well that's what I'm asking you. ... And if those aren't my words -
Well - ... - and if I were to have described her breast examination on that day I would have said I found no abnormality.
Well if you found something that fitted the description that I've just read to you, how would you define it?
HIS HONOUR: In other words, if you'd palpated the breast and found something that's just been read out to you -
WITNESS: Yes.
HIS HONOUR: Now, that's the question.
WITNESS: I'd say that – that in the absence of a mass or a lump I would say it was an irregularity."
The question was returned to later and the defendant made it clear that his interpretation of the description that had been put to him was of something diffuse and soft. "A soft ill-defined area in the breast with areas of nodularity contained within", he said, adding that it "sounds to me as though that would be well within the normal definition of breast texture in a young woman of child-bearing age". With a reference to the description of grittiness or par-cooked rice "within a very custard sort of consistency", he said that there can be a fine nodularity in a woman's breast that was within the range of normality. He said that there was nothing in the description that sounded like a fibroadenoma.
I was impressed by the defendant's apparent honesty in the way he answered those questions in re-examination. However, counsel for the plaintiff submitted that his answers supported the plaintiff's case because they revealed that if on palpation of the breast the defendant had found what she described in evidence, he would not have considered it to be an abnormality, he would not have made a different record of the consultation than the one he in fact made and he would have instructed the plaintiff to conduct regular self-examination. In other words, it was submitted for the plaintiff that the defendant would have done almost exactly what, on the plaintiff's case, he in fact did at the consultation. Of course, the defendant's evidence about that was not an admission by him that the plaintiff's version of the consultation was a correct one, but nevertheless, the submission has some weight. However, it is countered, at least to an extent, by the evidence from which I have found that what was described by the plaintiff would not have been considered by the defendant, the plaintiff and most of the medical practitioners who gave evidence, as a fibroadenoma. The defendant repeated what he had said earlier in his evidence that if he had thought there was a fibroadenoma he would regard it as an abnormality. He explained that was "because it's not part of a normal breast tissue, it's not like glandular or a fibrous tissue it's a benign tumour" and that "I would subject it to the triple test".
Mr Ansell's evidence of his description of what he felt in the breast on palpation following the consultation of 26 January 2002 was also put to the defendant in re-examination. He said it described an abnormality, and not a mere irregularity, because it referred to a mass structure with edges, unlike the other description of something diffuse and soft that had no mass structure or effect. It followed from what he said that if he had palpated what Mr Ansell described he would have noted the abnormality in his record of the consultation and he would have referred the plaintiff for an ultrasound and biopsy.
I turn to the issues arising out of the plaintiff's consultation with the defendant on 28 October 2002. I have related the plaintiff's evidence concerning it. The defendant's notes, that he made at the time of the consultation, were brief. They recorded that she was 18 weeks' pregnant; that she had mastitis in her right breast, with induration laterally and inferiorly; and that he prescribed an antibiotic, flucloxacillin, to be taken 500 mgs three times a day. His recollection is that the plaintiff came to him saying that she had developed a bad or severe case of mastitis. He has no memory of her saying that it was in the area he had told her to keep an eye on. Her breast was red and swollen, hot and tender. The history given to him was of a rapid four day onset. It seemed to him that it was an infective mastitis and he prescribed an antibiotic to deal with that condition. Other medical evidence supported that an infective mastitis was most likely, given the history and symptoms. It was his evidence that invariably he would have instructed a patient he believed to have infective mastitis to take the prescribed course of antibiotics and if the condition did not settle down, to let him know. He expected that the infection he thought was present would resolve and that a diagnostic ultrasound would follow. The thought that there may have been an inflammatory cancer did not come to his mind at the time of the consultation, largely because the condition looked like an infective mastitis and an inflammatory cancer is a rare condition and one he had never seen in all the years he had practised. He had no memory of it but accepted the plaintiff's evidence that he told her to have a diagnostic ultrasound once the swelling had subsided. As to her self-administering therapeutic ultrasound, he said she suggested it and he approved of it.
He accepted that when he gave evidence at the first trial he said that at the consultation on 28 October he palpated the breast at her invitation. Before me he said that he imagined that was so, but his evidence was clear that he had no memory of palpating the breast or of how he came to do so, and that he was only able to say that he did so because his note of the consultation recorded that there was induration. I accept his evidence about that and reject the submission of the plaintiff's counsel that his evidence at the first trial supported the plaintiff's evidence that he palpated her breast in response to a statement from her that the swelling and tenderness was in the area he had told her to keep an eye on. In any event, acceptance of the proposition that she invited him to palpate the breast does not lead to that conclusion. I add that I am unable to make a finding, one way or the other, as to whether she made the statement about it being in the same area.
He essentially agreed with other medical evidence that differential diagnoses for the presenting symptoms were infective mastitis, inflammatory cancer, an underlying abscess and a severe eczema or dermatitis. He thought that infective mastitis was overwhelmingly at the top of the list. The preponderance of other medical evidence supported him in that. It also supported the treatment he prescribed and approved as appropriate. However, as I understand his evidence, at the time of the consultation with the plaintiff he did not bring to mind the possible causes other than infective mastitis. The submission of the plaintiff's counsel was that his failure to think of the other differential diagnoses amounted to an actionable breach of contract, notwithstanding that no injury or damage was suffered as a result of the breach. On the other hand, counsel for the plaintiff conceded that his failure did not give rise to an actionable breach of duty in negligence for the very reason that damage must flow from a tort before it is actionable. For the breach of contract, her counsel submitted that nominal damages should be awarded against the defendant, and $100 was suggested.
It was the defendant's case that notwithstanding that he did not at the time of the consultation bring to mind the differential diagnoses, other than infective mastitis, it was of no consequence and would not have been in any event, because once it was discovered that the prescribed antibiotic had no effect, further diagnostic investigation would inevitably have discovered that inflammatory cancer was the cause, as it in fact did. The question that is raised is whether his admitted failure to think of other differential diagnoses on 28 October 2002 amounted to a breach of his contractual duty to the plaintiff, which by the statement of claim and his defence is admitted as a duty to exercise reasonable care in examining, diagnosing, advising, managing and treating her.
Conclusions
I do not accept that part of the plaintiff's version of the consultation of 26 January 2002 that is in issue. I conclude that the defendant did not find the so-called gritty area at that time and did not discuss it with the plaintiff. Throughout these reasons I have made findings and comments adverse to the plaintiff's case and it is largely because of them that I find against her on the principal issue. Those findings and comments, in the order I have made them, include the following ones, which I regard to be significant:
·it is unlikely that neither the plaintiff nor the defendant would have raised the desirability of further investigation being carried out;
·it is unlikely that neither the plaintiff nor the defendant would have doubted that what was present was a fibroadenoma;
·the failure of the plaintiff to raise what was in her breast with any other medical practitioner or person, with the possible exception of her husband, until late October 2002;
·the apparent lack of conformity between the evidence of the plaintiff and the evidence of her husband concerning palpation of her breast by each of them between 26 January and the end of October 2002;
·the relating by the plaintiff of the history of her cancer to Dr Kimber on 5 November 2002, when she made no mention of the consultation with the defendant on 26 January and the finding of any irregularity or abnormality at that time but instead commenced the history with a reference to a change in her breast early in her pregnancy;
·concerning that point, the likely concoction by the plaintiff and her husband of an explanation for Dr Kimber's evidence;
·Dr Ward's note that the plaintiff told him that fibroadenomata, rather than a fibroadenoma, had been referred to during the consultation of 26 January; and
·the failure of the plaintiff to accuse the defendant of wrong-doing and her continued consultations with him until a significant time had elapsed after the cancer was discovered.
There is a substantial body of evidence that supports the plaintiff's case but it is particularly in the light of the matters to which I have referred and, of course, the defendant's evidence, that I have concluded that she has not discharged her onus of proof.
Concerning the alleged breach of the defendant's contractual duty of care on 28 October 2002 by his failure to bring to his mind differential diagnoses other than infective mastitis, such as inflammatory cancer, I hold that such a failure did not amount to a breach of the duty to take reasonable care. It was made clear from the evidence of a number of medical witnesses that infective mastitis was the most likely cause of the presenting symptoms and signs and that the treatment at first with an antibiotic was the treatment that was appropriate. Therapeutic ultrasound as a treatment was not shown to be inappropriate. I am satisfied that the defendant's treatment of the plaintiff at that consultation was not negligent or in breach of his duty. I do not regard his failure to bring to his mind at that consultation every possible alternative diagnosis if the condition was not infective mastitis amounted to a breach of the duty to take reasonable care. If, as proved to be the case, the failure of the antibiotic gave rise to the likelihood that infective mastitis was not involved, the prompt diagnosis of the condition by the defendant, with or without specialist advice, as inflammatory cancer was likely. It is imposing too high a standard of care to require a medical practitioner to bring to mind every possibility in addition to the most likely ones, at a first consultation.
For the reasons I have given there will be judgment for the defendant.
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