| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CARTER -v- OLSTHOORN & ANOR [2003] WADC 194 CORAM : BLAXELL DCJ HEARD : 25-29 AUGUST 2003 DELIVERED : 5 SEPTEMBER 2003 FILE NO/S : CIV 943 of 1999 BETWEEN : CATHY CARTER Plaintiff
AND
DR QUIRINUS PETER WILLIAM OLSTHOORN
First Defendant
DR CATHERINE THORNE
Second Defendant
Catchwords: Negligence - Professional negligence - Whether first defendant orthopaedic surgeon and second defendant general practitioner were negligent by failing to properly investigate a benign tumour in plaintiff's upper arm which ultimately became malignant - Whether damage was sustained in circumstances where an earlier diagnosis is likely to have resulted in exactly the same treatment as the plaintiff in fact received
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Legislation:
Nil
Result: Plaintiff's claims dismissed Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr P D Quinlan
Second Defendant : Mr D Wallace
Solicitors:
Plaintiff : In person
First Defendant : Clayton Utz
Second Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Rogers v Whitaker (1992) 175 CLR 479
Case(s) also cited:
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Maloney v Commissioner for Railways (1978) 52 ALJR 292
Rosenburg v Percival (2001) 205 CLR 434
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1 BLAXELL DCJ: The plaintiff claims damages from the first defendant orthopaedic surgeon and the second defendant general practitioner for their alleged negligence during 1993 in failing to properly investigate a tumour in the plaintiff's left upper humerus. The plaintiff contends that approximately one year later in 1994 the tumour was diagnosed to be malignant and that she consequently underwent significant surgery including an allograft replacement. I understand the plaintiff to say that this surgery might not have been necessary if there had been proper investigations during 1993.
2 The defendants each deny that they were negligent and say that they took the appropriate steps to treat what was and remained a benign lesion. They do not admit that the subsequent allograft surgery was appropriate or necessary, but say that if it was necessary then the plaintiff is likely to have undergone the same procedure if a malignant tumour had been diagnosed at an earlier time.
The plaintiff's version of events 3 The plaintiff was born on 4 January 1950 and at all material times until 1998 resided with her partner and their children at Binningup near Bunbury. During 1992 she consulted the second defendant, Dr Thorne for menopausal problems unrelated to the present claim. In January and February 1993 she also developed symptoms of pain and limitation of movement in the left shoulder and upper arm. She accordingly consulted Dr Thorne on 10 March 1993 and was referred for radiological examination at St John of God Hospital Bunbury. The report on these x-rays (which was sent direct to Dr Thorne) revealed scattered calcification within the neck of the left humerus which had the appearance of a chondroma (viz an abnormal growth of cartilage tissue). The report went on to state: "The appearances suggest a benign lesion and a follow up in a further 3 months would be advisable to make sure the appearances are stationary. If the pain, complained of by the patient in the shoulder, is bone type pain rather than referred, a biopsy should be considered." (Exhibit 1A) 4 According to the plaintiff the radiologist was "quite concerned" and at the time of handing her the x-rays told her "to go back and see Dr Thorne immediately". She made an appointment to see Dr Thorne
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once again on 15 March 1993, but on that date Dr Thorne was unavailable and she was seen instead by Dr Gottschild. The plaintiff brought the x-rays with her and told Dr Gottschild that "I have a tumour here evident in the x-ray" (T 24). The consultation was disrupted when a mouse ran into the room, but afterwards Dr Gottschild provided the plaintiff with a referral for further tests by a pathologist, Dr Gammon. (As it turns out this referral to Dr Gammon was related to the plaintiff's hormonal problems rather than the problem in her shoulder.) 5 On 25 March 1993 the plaintiff was seen by Dr Thorne who by then had the results of all examinations. According to the plaintiff, Dr Thorne was "very concerned" and told her that she had a benign tumour, but wanted it checked out by the specialist orthopaedic surgeon, Mr Olsthoorn. 6 The plaintiff then left Dr Thorne's surgery and immediately sought an appointment with Mr Olsthoorn. However, she was told by Mr Olsthoorn's receptionist that "he doesn't see people like you. You have no private health cover. He won't see you" (T 29). After a confrontation with the receptionist, the plaintiff returned to Dr Thorne the same day (viz 25 March 1993). Dr Thorne then telephoned Mr Olsthoorn in the plaintiff's presence and said to him that "it is large, it looks serious, I think you should see her". As a result of this intervention by Dr Thorne, an appointment was made for the plaintiff to see Mr Olsthoorn on 19 April 1993. 7 It is the plaintiff's evidence that during her appointment with Mr Olsthoorn on 19 April she was unable to raise her left arm and his only examination was lift the arm which he then "flopped down". He also "just looked at one of those x-rays, if that, very quickly" (T 31). The plaintiff told Mr Olsthoorn that she "wanted a biopsy", because she had a friend who had recently lost a breast to cancer, and the plaintiff herself had had a biopsy in respect of a lump in her left breast in 1985. (The plaintiff believed that a biopsy was necessary to determine whether or not the tumour was malignant, and it seems that she also feared that the previous problem in her breast might be related to the shoulder.) It is the plaintiff's evidence that Mr Olsthoorn responded to this request by saying: "You are cancer paranoia, it is dead old bone, go away, you are wasting my time and you know too much." (The plaintiff is adamant that the first defendant used the words "you are cancer paranoia" rather than "you have cancer paranoia".)
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8 According to the plaintiff, she was hysterical by this time, and she had a verbal confrontation with Mr Olsthoorn during which she requested further tests and he reiterated that "it is dead old bone". When Mr Olsthoorn indicated that the appointment was at an end, the plaintiff said "you can't do this to me. It is a tumour. It is big. Dr Thorne's called it a tumour. She said it was benign. I had to have it tested" (T 34). Mr Olsthoorn reiterated that it was "dead old bone" and when the plaintiff then said that: "you can't send me away like this, I'm in pain" (T 36) he wrote out a prescription for pain relieving suppositories following which she left.
9 According to the plaintiff she was "extremely distressed" and immediately returned to see Dr Thorne (on 19 April) to describe her "awful" experience with Mr Olsthoorn. Dr Thorne's response was to tell her that: "We have to believe 'Q' because he is the best there is in Bunbury." 10 The plaintiff's evidence is to the effect that Dr Thorne went on to persuade her that she should accept Mr Olsthoorn's diagnosis, and apart from prescribing some anti-inflammatory medications took no further steps to address her symptoms. 11 The plaintiff then resolved to accept the situation and to "get on with life". During the following 11 months she saw Dr Thorne on two occasions (27 May and 7 September 1993) in respect of unrelated hormonal problems and to obtain a renewal of the prescription for anti-inflammatory tablets. At each consultation the plaintiff also advised Dr Thorne that her shoulder was "still sore" (T 42). 12 On 23 February 1994 the plaintiff went to see Dr Thorne again because despite the weather getting hotter the pain in her shoulder was "excruciating". According to the plaintiff, Dr Thorne said to her: "Look I am really sorry, we should have followed up during the year but I have been very busy." 13 Dr Thorne referred the plaintiff for further x-rays which were performed on 25 February 1994. The report of that x-ray examination was sent to Dr Thorne and stated that: "There is some sclerosis within head and neck of the humerus. This was also seen on the previous examination taken 10/03/93
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and appears to be slightly more marked in distribution since that time. The differential diagnosis is:- 1. Bone infarction. 2. Enchondroma. 3. Fibrous dysplasia. In view of the pain and the slight increase in area of calcification bone infarction may be the most likely initial possibility. This type of appearance may occur as an idiopathic lesion. It is also associated with caisson disease and aviators disease, associated with pancreatitis, alcoholism and haemoglobinopathy as well as storage disease. Slightly expanding enchondroma cannot be excluded but there are no other features to suggest this. MRI studies may help to further assess this if infarction is progressing." (Exhibit 7) (NB an "enchondroma" is a type of benign bone tumour that originates from cartilage). 14 According to the plaintiff the staff at St John of God who performed the second set of x-rays: "… were very concerned, they wouldn't say anything. You know, I kept saying, 'What's wrong? What's wrong?' They just told me to get to Dr Thorne as soon as I could again." (T 11) 15 The plaintiff was keeping a diary note of events and it is her evidence that on 8 March 2004 Dr Thorne rang her at home to say that the tumour had grown and to come and see her as soon as possible. During the course of the conversation that followed the plaintiff was crying and Dr Thorne "just kept saying": "I'm sorry, I was so busy … . I should have followed it up" (T 45). 16 The plaintiff attended upon Dr Thorne the following day (9 March 1994) and was referred for a bone scan to be conducted in Perth by Dr Geoff Bower. That bone scan was performed on 16 March, and in a report of the same date Dr Bower stated that:
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17 According to the plaintiff, Dr Bower was very concerned at these results and immediately arranged an appointment for her to see an orthopaedic surgeon at QE II Medical Centre (Mr David Wood) on 21 March 1994. 18 On 17 March 1994 the plaintiff attended upon Dr Thorne once again and was referred for CT scans at St John of God Hospital Bunbury. The CT scans were performed on 18 March, and the results suggested: "… bone infarction rather than enchondroma or fibrous dysplasia. The overall appearance suggests it is benign." (Exhibit 7) 19 Subsequently the plaintiff kept her appointment on 21 March with Dr Wood and he arranged for a biopsy and MRI scan of the upper left humerus. Two specimens were obtained during the biopsy, and the first was described as having a "histological picture … of enchondroma". In respect of the second specimen, the report stated: "A firm interpretation whether there is or is not bone permeation cannot be made. With this qualification the tumour otherwise has the features of an enchondroma." (Exhibit 10) 20 The report on the MRI scan (conducted on 28 March 1994) made the following comment: "The findings are those of a cartilage tumour. It is not possible on imaging criteria to differentiate enchondroma from low grade chondrosarcoma. The clinical history of pain makes chondrosarcoma more likely. The issue of whether or not there is cortical permeation could be addressed by fine cut C.T. in the region of the neck of humerus." (Exhibit 9B) 21 The plaintiff has not called evidence from Mr Wood, and it is not clear whether a "fine cut CT" was conducted as recommended in the MRI report. However, on 7 April 1994 the plaintiff was admitted to
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Hollywood Hospital for a bone transplant operation which was performed by Mr Wood on the following day. The procedure adopted was to remove 8½ cm of the plaintiff's upper left humerus including the head and to replace it with a donor bone (referred to as an "allograft" procedure). 22 The plaintiff was discharged from hospital after 10 days but unfortunately suffered complications including infection which required her re-admission at the end of April 1994 for approximately five weeks. During this period the plaintiff underwent a series of three operations which involved the donor bone being removed and replaced, muscle tissue being transferred from the chest to the shoulder (a latissmus dorsi flap), and the application of a split thickness skin graft using skin tissue from the thigh. 23 Following her discharge from hospital in May 1994 the plaintiff underwent 10 months of physiotherapy. By September 1994 her condition had settled to the extent that she was able to return to part-time work as a receptionist. 24 During 1998 the plaintiff experienced further problems because one of the pins in the allograft had become dislodged. As she was in need of further operative procedures she decided to return to her hometown of Adelaide where she had the support of family and friends. In August 1998 Mr Mark Clayer performed a debridement at Queen Elizabeth Hospital in Adelaide, including removal of an extruded intramedullary nail. A further similar operation was required in 2000. 25 In April 2001 another debridement was performed by Mr Michael Sandow at the Royal Adelaide Hospital which involved the insertion of "an antibiotic loaded cement spacer" (although I do not have evidence as to the nature of this procedure, I understand it was necessary in order to combat infection). In June 2001 the plaintiff underwent yet another operation for "a reconstruction with a proximal humeral hemi-arthroplasty and strut allograft" (see Exhibit 11). This involved the insertion of a new donor bone combined with a titanium head. 26 The plaintiff has provided detailed evidence as to her residual symptoms and disabilities, and a fair summary of these is to be found in the following passages of a report dated 26 November 2002 from Dr Andrew B Fagan (Exhibit 11): "On examination she has a tennis racquet shaped scar over the anterior left shoulder. There is a horizontal scar over the left posterior chest from where the latissimus dorsi flap was
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harvested. She has no active abduction at the shoulder and only ten degrees of elevation. This is increased to ten degrees of passive abduction and thirty degrees of passive elevation. She is able to lift her hands to her nose with very little movement occurring at the shoulder joint. She is able to reach behind her back to the level of the buttock. Movement of the shoulder produces a visible prominence in the area of her split skin graft over the antero-superior aspect of her shoulder. She rates the pain that she feels in her shoulder and neck as five out of ten. She rates the low back pain that she gets as six out of ten. She is taking minimal pain relief for her shoulder, comprising of two Panadeine Forte at night to help her sleep. She doesn't take pain killers during the day, out of a desire to minimise her intake. Ms Carter is severely restricted in her activities of daily living, on account of the dysfunction in her left shoulder. Although she has normal wrist and hand movement she is able to do little more than brace with her left hand. Dressing, showering, toileting and preparing and eating meals are all essentially done with her normal hand. Fortunately she is right hand dominant. Ms Carter does not have regular household assistance. At the time of coming home from hospital she has had help from the local church and friends. I would assess that her permanent disability in the left upper limb is eighty percent. I do not feel any further medical or surgical intervention is likely to result in any improvement in left upper limb function. I have documented the cutaneous scarring over Ms Carter's left shoulder. Her x-ray reveals a very narrow space between the prosthesis and the acromion indicating a deficiency of the rotator cuff. Judging by the restriction in passive movement of her shoulder I would anticipate there is extensive peri-scapular scarring around Ms Carter's left shoulder."
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The defendants' version of events
27 The second defendant, Dr Thorne, qualified as a medical practitioner in 1970 and has practised as a general practitioner at Bunbury since 1988. According to Dr Thorne, she first saw the plaintiff on 12 November 1992 and the latter continued as her patient through until February 1998. As Dr Thorne does not have a clear recollection of what took place during relevant consultations, she has relied upon notes taken at the time in giving her evidence. 28 According to Dr Thorne, the plaintiff presented on 12 November 1992 with "hormone problems in the main". Because it was a first consultation Dr Thorne took a full history, during the course of which the plaintiff stated that she had had elbow and shoulder pains in the mornings for the past two months. 29 As there was insufficient time to complete the consultation a further appointment was arranged for 24 November 1992. During that second consultation the plaintiff complained about clicking in the left shoulder joint and pain with all movements in the upper arm. Dr Thorne accordingly referred the plaintiff for x-rays and physiotherapy of the left shoulder and also prescribed some anti-inflammatories. In respect of an unrelated problem of possible osteoporosis Dr Thorne also referred the plaintiff for a bone density test at Sir Charles Gairdner Hospital (Exhibit 23). 30 Dr Thorne has no record of any consultation on 10 March 1993 as claimed by the plaintiff (nor was Medicare billed for any visit on that date). According to Dr Thorne, the plaintiff was next seen by another doctor in the practice (Dr Gabi Gottschild) on 15 March 1993. The notes of that consultation indicate that the plaintiff on that date had three unrelated complaints, the first of which was: "1. Shoulder pain bilateral 31 The notes also show that there was a further appointment with Dr Thorne for 18 March 1993 which was cancelled by the plaintiff. The plaintiff next saw Dr Thorne on 25 March 1993 when there were
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discussions about hormonal symptoms and about referral to an orthopaedic specialist. I understand Dr Thorne to say that the discussion about the orthopaedic specialist arose as a result of the x-ray report which had been received from St John of God Hospital. Her reason for referring the plaintiff to an orthopaedic specialist was that: "In general practice you don't often see these things. This was the first time I'd seen an enchondroma mentioned or, you know, a tumour like this in the humerus and therefore I wanted a second opinion, particularly since, you know, the radiologist left a little bit of doubt, left it a little bit open, so I wanted a second opinion." (T 223) 32 According to Dr Thorne's notes it was during the course of this consultation on 25 March 1993 that she arranged the appointment for the plaintiff to see Mr Olsthoorn on 19 April at 11.30 am. She assumes that she made this arrangement by telephone. 33 The next consultation with Dr Thorne was on 5 April 1993 at which date the plaintiff was "still complaining of pains in … both arms and the neck, the left was worse than the right". There was also a complaint about left leg symptoms in respect of which Dr Thorne conducted an examination (T 222). 34 On 19 April 1993 the plaintiff kept her appointment with the second defendant, Mr Olsthoorn. Mr Olsthoorn had qualified as a medical practitioner in 1969 and had obtained specialist qualifications as an orthopaedic surgeon in 1974. He subsequently conducted a private practice in Bunbury from 1978 until retiring in 1994. It is Mr Olsthoorn's evidence that during the whole of the time he was in practice he dealt with both public and private patients, and never refused to see a patient because of a lack of private health cover. His evidence in this regard is confirmed by Dr Thorne who at all material times conducted a bulk billing practice, and frequently referred public patients to Mr Olsthoorn. 35 Mr Olsthoorn saw the plaintiff only once, on 19 April 1993. While he has a recollection of the consultation "in general terms because of the circumstances of this affair", his evidence as to the details of what happened is based upon the contents of the report he prepared immediately afterwards. In this regard Mr Olsthoorn has testified that he always dictated a report to the referring general practitioner immediately after seeing a patient and before seeing the next patient. In the present instance, the report from Mr Olsthoorn to Dr Thorne read as follows:
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"Thank you for referring Mrs Boulger who has numerous symptoms, plus I think some cancero-phobia. She has had long standing musculo-skeletal symptoms in the left hip and also a curious swelling of the left leg which has never been actually diagnosed. About six or eight months ago she started getting some aching in the left upper arm from shoulder to elbow. This is similar to an episode about seven years ago following a anaesthetic for a breast biopsy when she had many weeks of aching in the left arm as well. More recently she has developed similar aching in the right arm and some stiffness in the neck which is translated across the shoulder blades. She is able to drive a car and back a car. There is no numbness or pins and needles no paraesthesia no symptoms at all below the elbow. The stiffness is worse in the mornings but also during the evening. It hasn't yet been helped by anti-inflammatories and she has had one episode of cervical mobilization and manipulation. On examination there is really not much to find. There is a full range of movement in the cervical spine and basically a full range of movement in the shoulders. There is some limitation of internal rotation in the hips, the left more marked than the right. X-rays show some calcification in the humeral head on the left hand side. In my opinion this is long standing and benign but there are no other changes. In the cervical spine there are some degenerative changes both at C5/6 and C6/7 with foraminal encroachment on both sides at these levels. The symptoms do not really support a diagnosis of cervical brachaligia. It is more an appearance of morning stiffness. Whilst I note that the white cell count and ESR are normal, I still wonder whether she has a mild inflammatory arthropathy rather than a mechanical problem. There certainly are some changes in the cervical spine but the symptomatology is not really that of a cervical brachalgia as yet.
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36 Mr Olsthoorn denies telling the plaintiff that her shoulder lesion was "dead old bone" or that she was "wasting his time" and should "go away". It is his evidence that any specialist making such comments would "deserve to be in court" (T 196). 37 According to Dr Thorne, she next saw the plaintiff on 27 May 1993. She has no record of a consultation on 19 April immediately after the appointment with Mr Olsthoorn as claimed by the plaintiff, and believes that there would be such a record if the consultation had in fact occurred (the plaintiff being a bulk billing patient). 38 The notes of the consultation on 27 May 1993 are almost entirely concerned with complaints unrelated to the plaintiff's shoulder. However, Dr Thorne believes that she went through Mr Olsthoorn's report with the plaintiff, and then arranged to refer the plaintiff to a rheumatologist (Dr A Black) as recommended. As Dr Thorne wished to provide Dr Black with a copy of Mr Olsthoorn's report she arranged for the plaintiff to come back the following day to collect the referral. (However, the evidence establishes that the referral was not in fact collected by the plaintiff, and she therefore never attended upon the rheumatologist.) 39 Dr Thorne had a further consultation with the plaintiff on 7 September 1993, and the notes for that appointment are almost entirely concerned with "family issues". There is, however, a reference to the plaintiff's anti-inflammatory drugs "upsetting her". Arrangements were made for the plaintiff to return again in one week but that did not in fact occur. 40 Dr Thorne next saw the plaintiff on 23 February 1994 concerning hormonal problems. Towards the end of the consultation the plaintiff also complained that her left humerus was "very painful again", and Dr Thorne arranged for a repeat x-ray. 41 When Dr Thorne received the report of the repeat x-ray of the left humerus she noted that there was a "possible slight change in size". For
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this reason she decided to arrange for further investigation by way of a bone scan. 42 According to Dr Thorne's notes she next saw the plaintiff on 9 March 1994. The first matters dealt with at that consultation were the plaintiff's hormonal problems, and Dr Thorne also performed vaginal and breast examinations. In relation to the left shoulder, Dr Thorne's notes indicate that she initially discussed referring the plaintiff to Mr Olsthoorn for review. However, that did not happen because the plaintiff did not want to go back to Mr Olsthoorn. Dr Thorne then advised that she would refer the plaintiff to Dr Geoffrey Bower for the bone scan. (The date of that referral was 14 March 1994.) 43 Dr Thorne had a further consultation with the plaintiff on 17 March 1994. On that date she telephoned the orthopaedic specialist, Mr David Wood, and arranged an appointment for the plaintiff. (Dr Thorne's evidence is not clear whether she was in fact simply confirming an appointment previously arranged by Dr Bower.) From that point on matters were largely out of Dr Thorne's hands, and decisions as to surgical intervention were made by the plaintiff in consultation with Mr Wood. 44 It is relevant to note Dr Thorne's evidence that when referring the plaintiff to Mr Wood in March 1994 she believed that the tumour in the left humerus remained benign. She was not aware of any suggestion of a malignant chondrosarcoma until 5 April 1994 when the plaintiff telephoned her to advise of this diagnosis. The following day she was also handed a note by her receptionist to the same effect (Exhibit 27). 45 Dr Thorne denies that she at any time apologised to the plaintiff for failing to follow up on the original x-rays. In this regard: "I wouldn't have apologised to her for not following up on the x-ray. What I would have apologised – not apologised, would have said sorry, after she told me on the phone that she had got a malignant chondrosarcoma on 5 April 1994. I discovered afterwards that it actually was benign, the biopsy, but that would be the point where I would have said, 'I'm really sorry that you've got a tumour' because I always get sorry if my patients have got tumours." (T 241)
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The expert evidence
46 The first defendant, Mr Olsthoorn, provided expert evidence to support the accuracy of his diagnosis on 19 April 1993, and as to the appropriateness of the treatment that he recommended. Expert evidence has also come from three other orthopaedic surgeons being Mr Richard Beaver (a consultant at Royal Perth Hospital since 1991), Mr R C Edibam (a consultant at Sir Charles Gairdner Hospital for approximately 18 years until his retirement in 1997) and Dr P D Stalley (the head of Orthopaedics at Royal Prince Alfred Hospital, and chairman of the New South Wales Bone and Soft Tissue Sarcoma Service). Further expert evidence has also come from Dr Bernard Pearn-Rowe (currently the Western Australian president of the Australian Medical Association) and from an internet print-out headed "Loyola University Health System" which was tendered by the plaintiff and received as Exhibit 29. (NB: all of the expert witnesses were called by one or other of the defendants.) 47 The orthopaedic surgeon, Mr D Wood (now Professor Wood), who allegedly diagnosed a chondrosarcoma and performed the allograft replacement for the plaintiff did not give evidence. The plaintiff's reasons for not calling Mr Wood (who may well be thought to have been an essential witness) are to be found at pages 15-17 and 171-2 of the transcript. It is also perhaps relevant to note in passing that Mr Wood was at one time a fifth defendant in the present proceedings. 48 Those experts who were called largely concur with each other and with the material to be found in Exhibit 29. Accordingly there are a number of propositions established by the evidence which in my view are beyond question. 49 Firstly, chondrosarcoma is a malignant type of bone cancer that primarily affects the cartilage cells within a bone such as the humerus. Chondrosarcoma is the second most common type of primary bone cancer (viz a cancer which originates from bone) and is also most commonly found in persons between the ages of 50 and 70. 50 Most often, chondrosarcoma occurs in normal cartilage cells, but it can also develop from a pre-existing benign tumour such as the enchondroma found in the plaintiff's left humerus in April 1993. It is rare for an enchondroma to develop into a chondrosarcoma, but it does occur in up to 1 per cent of such cases. 51 Chondrosarcomas can be low grade, medium grade, or high grade. A low grade chondrosarcoma (as the name suggests) is less malignant than
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the others and it is unusual for it to result in metastases in other parts of the body. 52 Radiologically, it is very difficult to distinguish between an enchondroma and a low grade chondrosarcoma. The features in an x-ray which are characteristic of a chondrosarcoma (as distinct from an enchondroma) are penetration or destruction of the cortex (the outer layer of the bone) or scalloping of the endosteum (the tissue lining the cavity of the bone). 53 A biopsy into the cartilage of the bone is an unreliable method of differentiating an enchondroma from a chondrosarcoma. The principal reason for this is that frequently there are only some parts of a tumour which are malignant. Accordingly a biopsy can never provide a guarantee that a tumour is benign. Furthermore, the biopsy procedure does involve some risks, particularly that of infection. 54 In the end and when the x-ray appearances are consistent with either enchondroma or chondrosarcoma, the only reliable guide to diagnosis is the taking of a careful history of the patient's pain symptoms. In this regard intermittent pains, or pains following movement would not be consistent with chondrosarcoma. The pain typical of a chondrosarcoma is that which Mr Beaver describes as "malign" pain or pain which tends to be constant and never varying. 55 When a chondrosarcoma is positively diagnosed, the only appropriate treatment is removal of the tumour by way of an allograft replacement of the type performed on the plaintiff in April 1994. An allograft replacement would never be appropriate when the diagnosis is a mere enchondroma. 56 The evidence also confirms the well known fact that experienced orthopaedic surgeons are as expert as radiologists in interpreting x-ray films and other histological materials. This is because over a period of years orthopaedic surgeons conducting operations are able to compare the actual condition of the bones of patients with their previous appearances on x-ray. An orthopaedic surgeon is further aided in making a diagnosis by the opportunity of a full examination of the patient and obtaining a history of the relevant symptoms. 57 Turning now to the particular case of the plaintiff, the expert evidence clearly establishes that the x-rays performed on 10 March 1993 were not in any way suggestive of a chondrosarcoma. There was no apparent penetration or destruction of the cortex, nor was there any
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endosteal scalloping. The scattered areas of calcification within the humerus had the appearance of being totally benign. 58 The second set of x-rays taken on 28 February 1994 revealed calcification which was only "slightly more marked in distribution". The radiologist's differential diagnosis of bone infarction, enchondroma, or fibrous dysplasia all refer to conditions which are totally benign. The "slight increase" in size of the tumour did not of itself suggest that it had become malignant, because benign tumours also tend to increase in size. 59 Furthermore, any slight increase in size when comparing x-rays does not necessarily indicate growth in a tumour. Such a change in appearance can be due to "rotational effect" (slight variations in the angle of the x-ray) or to slight variations in distance between the patient and the x-ray machine. In this regard, Mr Stalley testified that there can be a 10 per cent variation between x-rays taken on separate occasions of the same patient on the same day. 60 The expert witnesses all agree that the results of the other tests performed on the plaintiff (which are the subject of exhibits tendered during the trial) do not establish the presence of chondrosarcoma. In particular the "moderately intense increased uptake" reported in respect of the bone scan (Exhibit 6) is as consistent with a benign tumour as with a low grade chondrosarcoma. Similarly, the CT scan performed on 18 March 1994 (Exhibit 7) was unable to advance the differential diagnosis in the x-ray report of 28 February 1994, and the biopsy results on 31 March (Exhibit 10) reported an enchondroma. 61 Yet again, the results of the MRI scan performed on 28 March 1994 (Exhibit 9B) were unable to differentiate enchondroma from low grade chondrosarcoma. The radiologist's report that "the clinical history of pain makes chondrosarcoma more likely" begs the question of what that clinical history was given that the radiologist would not have had any role in obtaining the same. According to Mr Stalley, that comment from the radiologist was "entirely unhelpful" because he was not a clinician (T 345). 62 The radiologist who reported on the MRI scan recommended a further "fine cut CT in the region of the neck of the humerus" (Exhibit 9B). Such a scan would simply have increased the number of images of the bone, at intervals of 1 mm instead of the 2 or 3 mm intervals that applied to the previous CT scan. However, the evidence before me does not show whether or not a fine cut CT scan was in fact performed.
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63 A fine cut CT scan aside, the expert evidence establishes that a diagnosis by Mr David Wood of a low grade chondrosarcoma could only have been based upon a careful history of the plaintiff's pain state. The evidence does not of course directly establish that such a diagnosis was in fact made.
64 Mr Beaver and Mr Stalley both agree that if they had been in Mr Olsthoorn's shoes on 19 April they would have recommended follow-up x-rays of the plaintiff to monitor any changes in her enchondroma. According to Mr Stalley, he would have: "… ask(ed) the patient to return to me in six months time with a new x-ray, with the advice that if the symptoms changed in any other way they should come back soon." (T 340) 65 During cross-examination by the plaintiff, Mr Stalley amended his opinion to say that a repeat x-ray would have been desirable within "6 to 12 months" (T 351) which accords with Mr Beaver's opinion as to when such a follow-up x-ray should have occurred. 66 Mr Olsthoorn did not in fact recommend such a follow-up x-ray, and his evidence is to the effect that he did not do so because he was convinced that the plaintiff's enchondroma would remain benign. He also took into account the fact that the plaintiff's bilateral shoulder symptoms were inconsistent with the benign bone tumour being the cause. 67 As it happens Dr Thorne on her own initiative did arrange for follow-up x-rays and these were performed on 28 February 1994 (or approximately 10 months after the plaintiff's consultation with Mr Olsthoorn).
Findings of fact 68 There are significant conflicts in the evidence as to the dates of particular consultations between the plaintiff and Dr Thorne and as to what took place during the course of those consultations. Dr Thorne's version of events is not based upon any detailed recollection but on what she wrote in her notes taken from time to time. The plaintiff on the other hand claims to have a very vivid and detailed recollection of the relevant conversations and events, and describes herself as having a "photographic memory" (T 134). 69 There is a similar conflict between the plaintiff and Mr Olsthoorn as to what took place during their consultation on 19 April 1993. Here
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again, Mr Olsthoorn relies principally upon the contents of his report of the same date, whereas the plaintiff claims to have a detailed recollection even to the extent of precisely quoting some unprofessional remarks allegedly made by him (eg "you are cancer paranoia, it is dead old bone, go away, you are wasting my time and you know too much"). 70 On one or two occasions during the trial the plaintiff sought to explain these conflicts in the evidence on the basis that the defendants' documents "could have been fabricated". However, this proposition was directly put in respect of only one document, namely the receptionist's note Exhibit 27 (T 274-5). 71 Having heard and seen the defendants and examined the relevant documents I have no hesitation in finding that Dr Thorne's notes and Mr Olsthoorn's report are genuine and not fabricated. In this regard Dr Thorne in particular impressed me as being a patently honest witness. Furthermore, there was no possible motive for her to fabricate the receptionist's note, which to the extent it is relevant at all can be only marginally so in respect of credit. As to the remaining documents, the detailed nature of their contents to my mind makes their fabrication totally implausible. 72 Although the plaintiff impressed me as having a genuine belief as to the justness of her cause, it is obvious that she also has a very deep sense of grievance. The latter appears to be largely based upon the fact that Mr Olsthoorn assessed her as having cancero-phobia (or in her words "cancer – paranoia") when only one year later she was diagnosed with a malignant tumour. To the plaintiff's way of thinking the defendants' failure to arrange for a biopsy or other tests in 1993 means that she will never know whether the tumour at that time was benign or malignant (para 5 of amended statement of claim and T 13). This is so notwithstanding the expert evidence that the x-ray findings not only in 1993 but also in 1994 were totally benign. 73 To my mind it is also significant that the plaintiff has been devastated by the aftermath of the allograft surgery including the further operations brought about by infections. This reaction, while entirely understandable has aggravated her sense of grievance. 74 Having heard and seen the plaintiff in the conduct of her trial it is my assessment that the collective impact of these factors has affected her recollections to such an extent as to bring about a reconstruction of events in 1993. A prime example is her evidence that she was unable to obtain
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an appointment with Mr Olsthoorn because he refused to see patients without private health cover. If this had been true it would be a notorious fact and the denials from Mr Olsthoorn and Dr Thorne would be easily uncovered as perjury. Similarly the plaintiff's account of the drama and concern surrounding her first x-ray results, is contradicted by Dr Thorne's notes showing that the main focus was on hormone problems. 75 There are many other such examples and in the end I have come to the conclusion that the evidence of the plaintiff is unreliable. Accordingly I prefer the evidence of the defendants based as it is on the contemporaneous notes of Dr Thorne and report of Mr Olsthoorn. 76 I find that the plaintiff first complained to Dr Thorne about shoulder pains on 12 November 1992. At a further consultation on 24 November 1992 Dr Thorne provided the plaintiff with a written referral to St John of God Hospital for x-rays of both shoulders and the cervical spine. However, the plaintiff did not act on that referral until 10 March 1993. Following receipt of the x-ray report at Dr Thorne's surgery, the plaintiff was seen by Dr Gottschild on 15 March 1993. On 25 March 1993 the plaintiff consulted Dr Thorne again in respect of hormonal problems as well as the results of the x-rays. It was during the course of that consultation that Dr Thorne telephoned Mr Olsthoorn and arranged the appointment for the plaintiff to see him on 19 April. Throughout this period the plaintiff was continuing to complain about intermittent bilateral shoulder pains (which of course were inconsistent with any chondrosarcoma in the left humerus). 77 At the consultation on 19 April 1993 Mr Olsthoorn obtained a history of bilateral shoulder pains which had commenced with the left shoulder approximately six to eight months previously. I do not accept that the plaintiff was unable to lift her left arm and find that she had "basically a full range of movement in the shoulders" (Exhibit 5). 78 As a result of Mr Olsthoorn's examination and the history taken he was unable to come to a firm diagnosis as to the cause of the pains although he wondered "whether she (had) a mild inflammatory arthropathy rather than a mechanical problem". He certainly did not attribute the symptoms to the "longstanding and benign" calcification in the left humeral head. 79 The treatment prescribed by Mr Olsthoorn comprised Naprosyn suppositories and referral for a rheumatologist's opinion. I accept the evidence of Mr Beaver and Mr Stalley and accordingly find that the
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exercise of reasonable care by Mr Olsthoorn required that he should have also advised the plaintiff to undergo repeat x-rays of her left shoulder in 6 to 12 months time. 80 In this regard although Mr Olsthoorn was not in any way reckless and was genuine in his opinion that the plaintiff's benign tumour would not need further attention, he ought to have realised that there was perhaps a 1 per cent chance that the tumour would develop into a chondrosarcoma. As it turned out, the plaintiff was amongst the 1 per cent of such patients for whom such x-rays could become critically necessary. 81 I find that the plaintiff did not return to see Dr Thorne on the same day as claimed. Her next consultation with Dr Thorne was on 27 May 1993 at which time the latter arranged for a referral to the rheumatologist, Dr Black. However, the plaintiff did not get to see Dr Black because she did not return to Dr Thorne's surgery to collect the written referral. 82 The plaintiff next saw Dr Thorne on 7 September 1993 concerning "family issues" and on 23 February 1994 concerning hormonal problems. At the second of those consultations the plaintiff also complained that her left shoulder was "very painful again" and Dr Thorne very properly arranged for a repeat x-ray. In doing so Dr Thorne was displaying the standard of reasonable care that is to be expected of any ordinary general practitioner. 83 Thereafter at Dr Thorne's behest the plaintiff underwent a series of further tests including a bone scan, a CT scan, and an MRI scan. On 17 March 1994 Dr Thorne (at the suggestion of Dr Bower) also referred the plaintiff to the orthopaedic specialist, Mr David Wood, who ultimately carried out the allograft surgery. 84 I find that Mr Wood would not have carried out the allograft surgery without arriving at a diagnosis of chondrosarcoma. Although the expert evidence does not enable me to determine the accuracy of that diagnosis, I am satisfied that it was in fact made and that it was a diagnosis of low grade chondrosarcoma. 85 I find that the second set of x-rays performed on 28 February 1994 revealed a possible slight increase in size of the plaintiff's enchondroma. That finding did not provide any basis for a diagnosis of chondrosarcoma but did warrant the further tests which were in fact arranged by Dr Thorne. The evidence does not establish that any earlier tests would have resulted in a definitive diagnosis of chondrosarcoma. The evidence in fact establishes the contrary.
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86 Even if there had been a diagnosis of chondrosarcoma at an earlier time the appropriate treatment would have been exactly the same as that performed in 1994. In other words there would have been a need to refer the plaintiff to an appropriate specialist to carry out allograft surgery, with all of the potential risks and consequences which the plaintiff in fact later endured. I find that in those circumstances the allograft surgery would not have been performed by Mr Olsthoorn but by some other orthopaedic specialist recommended by Dr Thorne.
87 I also accept Mr Beaver's evidence that some nine years having elapsed since the partial removal of the plaintiff's left humerus, there is now absolutely no chance of mestastases developing in other parts of her body.
Findings as to liability 88 At the time of the plaintiff's consultation with Mr Olsthoorn on 19 April 1993, the risk of her enchondroma developing into a chondrosarcoma, although less than 1 per cent, was entirely foreseeable. Accordingly Mr Olsthoorn owed her a duty of care to advise on appropriate steps to monitor the possibility of the tumour becoming malignant. The standard of reasonable care and skill required of him was that of any ordinary orthopaedic surgeon exercising and professing to be skilled in that speciality (Rogers v Whitaker (1992) 175 CLR 479, 483). 89 I have found that the discharge of that duty of care obliged Mr Olsthoorn to advise the plaintiff to undergo repeat x-rays of her left shoulder within a period of 6 to 12 months. He failed to give that advice and accordingly was negligent. 90 However, that negligence did not result in any damage to the plaintiff because as it turned out, Dr Thorne independently arranged for repeat x-rays approximately 10 months after the consultation with Mr Olsthoorn. Proof of damage is an essential element of any cause of action in tort, and accordingly the plaintiff cannot succeed on this basis. 91 The plaintiff does have an alternative claim against Mr Olsthoorn in contract, and in that regard there was undoubtedly an implied term arising from the consultation with him that he would exercise reasonable care and skill. Mr Olsthoorn breached that contractual duty of care and accordingly the plaintiff's cause of action in contract is complete save for quantifying any damage.
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92 In this regard the plaintiff has not suffered any loss either directly or indirectly as a result of the first defendant's breach, because there has been exactly the same outcome as there would have been if the breach had not occurred. Even if she was correct in her assertion that the chondrosarcoma could have been diagnosed at an earlier time she would in fact have received a benefit as a result of the first defendant's breach, namely the use of her left arm without the allograft for a period of up to 10 months.
93 In these circumstances I consider that there is no basis for any award of damages, not even for a nominal amount. It follows that the plaintiff's claim against the first defendant should be dismissed. 94 The second defendant, Dr Thorne, when treating and advising the plaintiff also owed her a duty to exercise reasonable care, and the standard of care expected was that of any ordinary general practitioner. 95 In my view there is no possible basis for a finding that Dr Thorne breached that duty of care. The evidence in fact shows that Dr Thorne was thorough and compassionate in her treatment of the plaintiff, and I consider that the standard of care provided probably exceeded that which could have been expected of any ordinary general practitioner. Accordingly the plaintiff's claim against the second defendant must also be dismissed. |