Chapman v State of Queensland

[2002] QSC 428

SUPREME COURT OF QUEENSLAND

CITATION:	Chapman v State of Queensland [2002] QSC 428
PARTIES:	NOREEN MARY CHAPMAN (plaintiff) v STATE OF QUEENSLAND (defendant)
FILE NO:	S6929 of 2002
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	17 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14-17 October 2002
JUDGE:	Mullins J
ORDER:	The proceeding is dismissed.
CATCHWORDS:	NEGLIGENCE – MEDICAL NEGLIGENCE – DAMAGES – hospital pharmacy dispensed one drug in error for another – whether the taking of that drug in lieu of the drug that was prescribed caused the plaintiff to suffer a heart attack – plaintiff failed to discharge onus
COUNSEL:	The plaintiff appeared in person DK Boddice SC for the defendant
SOLICITORS:	Minter Ellison for the defendant

1. MULLINS J:  The plaintiff claims damages for personal injuries against the defendant which conducts the Nambour General Hospital, as a result of the hospital pharmacy dispensing to the plaintiff Veracaps SR 240mg capsules,  instead of Cardizem CD 240mg capsules, as had been prescribed by Dr Steven Coverdale at the hospital.  Veracaps is a brand name for verapamil.  Cardizem is a brand name for diltiazem.

1. Prior to filling the prescription, the plaintiff had been taking Cardizem 60mg since 1990.  She ceased taking that medication and commenced taking the dispensed medication Veracaps SR 240mg by taking one capsule on each of 24, 25 and 26 June 1996.  On 27 June 1996 the plaintiff was admitted to the hospital suffering severe chest pains. 

1. The plaintiff claims that as a result of the negligence of the defendant, she suffered a progressively worsening angina attack from 24 June 1996 until the time of her admission to hospital on 27 June 1996 and that severe angina attack caused permanent damage to her heart and has shortened her lifespan.  The plaintiff is seeking the sum of $700,000 for general damages for pain and suffering.  Although the plaintiff also seeks damages for future gratuitous care and future medical expenses, no evidence was adduced in respect of these heads of damages.

1. During the course of the trial the defendant expressly admitted that its servants in error dispensed to the plaintiff Veracaps SR 240mg capsules instead of Cardizem CD 240mg capsules.  The issue to be determined in this proceeding is whether the plaintiff suffered the damage alleged, as a consequence of this negligent act on the part of the defendant.

Witnesses

1. Apart from giving evidence herself, the plaintiff called her former husband Mr Leslie Chapman, one of her sons Mr Vincent Slade, her former solicitor Mr Travis Schultz and her current treating general medical practitioner Dr Wayne Herdy.  The plaintiff subpoenaed three doctors to give evidence.  One of those doctors was psychiatrist Dr Gary Larder who prepared a medico-legal report at the request of the solicitors who were acting for the plaintiff in October 2001 which report was not the subject of any tender by either the plaintiff or the defendant in this matter.  No evidence was sought to be adduced by the plaintiff from Dr Larder that was relevant to the matters in issue in this trial.  The other doctors who gave evidence for the plaintiff were her treating cardiothoracic surgeon, Dr Michael Gardner, and the plaintiff’s treating cardiologist, Dr Martin Masterson. 

1. The defendant called Dr Coverdale who was the Director of Medicine at the hospital who treated the plaintiff for 2 years from July 1990 and then again from 6 June 1996.  The defendant called Dr Patricia Smart who was the doctor in the emergency department of the hospital who admitted the plaintiff to the coronary care unit of the hospital on 27 June 1996 and Dr Jamie Von Nida who was the doctor who took a patient history from the plaintiff in the coronary care unit of the hospital on 27 June 1996.  The defendant also relied on the evidence of Senior Lecturer in Pharmacology, Dr Lindsay Brown, who is also a registered pharmacist in Queensland.   

Plaintiff’s medical history

1. In order to evaluate the plaintiff’s claims and the evidence relevant to them, it is necessary to summarise the plaintiff’s relevant medical and personal history that emerged from the evidence. 

1. The plaintiff was born on 30 August 1940.  The plaintiff is the mother of six sons, one of whom was injured in a traffic accident when he was 5 years old and became hemiplegic.  He requires constant care and still resides with the plaintiff. 

1. It appears that the plaintiff suffered nephritis diagnosed in about 1967 from over-indulgence in analgesics.  The plaintiff was injured in a motor vehicle accident in about 1981 in which she suffered whiplash with persisting problems which she attributed to the physiotherapy treatment to her cervical spine.  Those problems were losing balance, pain in her legs and having no feeling from the waist down the right leg.  In 1988 the plaintiff had an episode of severe crushing pain in her chest for which she was treated in hospital.  She was subsequently diagnosed in 1988 with early ischaemic heart disease and was advised to stop smoking.  At that stage the plaintiff was smoking 30 cigarettes per day and had been a long term smoker.

1. The plaintiff moved to the Sunshine Coast in 1989.  On 26 July 1989 she had an echocardiogram at Nambour General Hospital on which the following was recorded:

·  sinus rhythm, rate 83

·  ventricular premature complex
·  old anterior infarct

1. The plaintiff consulted Dr Coverdale at the hospital on 20 July 1990 in respect of her angina and the pain and paraesthesia in her right leg induced by walking and syncopal episodes.  The plaintiff was prescribed Cardizem 30mg tds.  That was increased to Cardizem 60mg tds on 12 October 1990. 

1. The plaintiff was referred by the hospital to Dr Masterson at Prince Charles Hospital for treatment which was undertaken in November 1990.  Coronary angiography was performed on 12 November 1990.  That showed single vessel coronary artery disease and normal left ventricular function.  Angioplasty was performed for symptomatic relief on 20 November 1990.  The Prince Charles Hospital’s records show that on this admission the plaintiff was diagnosed with angina pectoris, coronary arteria disease, left carotid artery stenosis, hypertension, hypercholesterolemia and  peripheral vascular disease.  As a result of this treatment at Prince Charles Hospital, the plaintiff had less frequent angina attacks. 

1. The plaintiff underwent an aorta bifemoral bypass in March 1992 at Royal Brisbane Hospital for treating her peripheral vascular disease.  There was a good outcome from that treatment.  When Dr Coverdale saw the plaintiff on 17 June 1992 she was only having very occasional angina, but she was still smoking.

1. The plaintiff’s general medical practitioner, Dr Penelope Sinclair, referred the plaintiff to Dr Coverdale again on 6 March 1996 when the plaintiff presented with left arm and shoulder pain, right lower chest pain “like a heart attack” and increasing angina.  The appointment with Dr Coverdale was on 6 June 1996. 

1. During the course of the trial the plaintiff was adamant that she was referred to Dr Coverdale for treatment of a pain which she had been suffering from under the right rib cage for some 2 years and that she had not reported increasing angina.  It is apparent from Dr Sinclair’s referral letter to Dr Coverdale dated 6 March 1996 that whatever the plaintiff had complained of to Dr Sinclair was interpreted by Dr Sinclair as “increasing angina”. 

1. Dr Coverdale accepted that the plaintiff may have been complaining about a pain in her chest, apart from angina, but stated that knowing the natural history of the plaintiff’s underlying heart disease, that was his main concern.

1. The history taken by Dr Coverdale from the plaintiff on 6 June 1996 was of recurrence of “angina” for a period of 2 years which Dr Coverdale noted that he was told was unpredictable, two to six times per week, no palpitations and no ankle swelling and that the plaintiff could hardly move in the morning.  She was experiencing claudication after 5 to 10 minutes of walking.  She was smoking 10 to 15 cigarettes per day and had an elevated cholesterol level of 7 and LDL of 4.33.

1. Dr Coverdale altered the plaintiff’s medication at this consultation to:

·Cardizem CD 240mg

·Imdur 60mg

·Aspirin 150mg

·Lipex 20mg

1. It appears that the plaintiff had been taking Isordil prior to this consultation, and continued taking it, so that she took Isordil on 24 to 26 June 1996, when she took the Veracaps, in addition to the Imdur and Lipex.  The plaintiff asserted throughout the trial that Dr Coverdale did not tell her to desist from taking the Isordil and that she should not have been taking the Isordil with the other medication that was prescribed by Dr Coverdale.  There was no pleaded claim to this effect.  In any case, Drs Masterson and Coverdale did consider the mixture of drugs which the plaintiff either took or was prescribed could be used together.  Dr Brown’s evidence was to similar effect.

1. Dr Coverdale reported to Dr Sinclair on his review of the plaintiff by letter dated 18 June 1996.  He described the plaintiff’s main problem as “atypical chest pain which may well be multifactorial”.  He also stated that: “Some of this pain sounds ischaemic and some sounds musculoskeletal”.

The incident

1. Although Dr Coverdale had given the plaintiff a prescription for Cardizem CD 240mg at the consultation with the plaintiff on 6 June 1996, the plaintiff did not have her husband fill the prescription at the hospital’s pharmacy until 23 June 1996, as she wished to finish off her existing supply of Cardizem 60mg.  The plaintiff therefore took the first Veracaps capsule on 24 June 1996.  She took a further capsule on each of 25 and 26 June 1996.  She did not take a Veracaps capsule on 27 June 1996, before she was admitted to the hospital.

1. The plaintiff gave evidence about what she could recall of how she felt from the time of taking the first Veracaps capsule.  She stated that half an hour or an hour or an hour and a half after taking one of the Veracaps capsules on 24 June 1996, she could hardly breathe and had niggling pains and decided not to go fishing which she had planned to do.  She stated that around 2pm or 3pm she felt fine.  The plaintiff stated that she experienced the same symptoms after taking a Veracaps capsule on 25 June 1996.  The plaintiff stated that on 26 June 1996 she took her Veracaps capsule at 6am and left home about 7.30am or 8am to drive towards Maroochydore and was three-quarters of the way there when she was experiencing severe heart pains.  She stopped in the middle of the road and used her Nitrospray and the pain eased slightly.  The plaintiff stated that she then parked her vehicle, but the pain persisted and she used the spray repeatedly, but it still persisted.  She stated that it must have been about 2pm or 3pm when she drove home and rested.  She went to bed.  She experienced niggling pains during the night and she got up about 5am on 27 June 1996.  She stated that she was suffering severe pains and her husband took her to the hospital.        

1. According to the records of the hospital, the plaintiff arrived at 9.15am.  The plaintiff recalls being admitted to the hospital, but does not remember much after that for the first two days that she was in the hospital.  The plaintiff was seen by Dr Patricia Smart in the emergency department.  Although Dr Smart cannot recall the consultation, she could identify the notes which she made of her examination of the plaintiff.  Dr Smart’s practice in recording the history given by a patient was to write down the symptoms word for word or, if the patient provides an extensive history, Dr Smart would summarise the symptoms into which she thought were the most important parts of the history relevant for diagnosis.  Dr Smart has no reason to believe that she did not follow that practice in respect of the history which she took from the plaintiff.  That history records an onset of severe, crushing retrosternal chest pain on 26 June 1996 at 5.30am with pain radiating to the jaw and down both arms and associated with shortness of breath and diaphoresis and nausea/vomiting.  Dr Smart’s  notes record that the pain occurred in several episodes lasting a half an hour to an hour each on 26 June 1996 which was eventually relieved each time by GTN spray.  Dr Smart recorded that the plaintiff presented to the hospital after further episodes of pain on 27 June 1996.  Dr Smart admitted the plaintiff to the hospital’s coronary care unit. 

1. Dr Jamie Von Nida took a history from the plaintiff on her admission to the coronary care unit.  Dr Von Nida can now not recall the plaintiff, but identified the history that was taken by him and that his normal practice (which he had no reason to suspect that he did not follow in this case) was to take the history from the patient, do an examination and then record the history after the taking of the history and examination had been completed.  Dr Von Nida stated that he would summarise the history and would use medical terms where appropriate. 

1. The history recorded by Dr Von Nida was that the plaintiff presented with severe central crushing chest pain radiating to bilateral jaw and down both arms and associated with shortness of breath, light headedness and slight sweating.  Dr Von Nida recorded that the pain began at 5.30am the previous day and woke the plaintiff from her sleep, it was relieved with anginine, but continued on and off throughout the day.  Dr Von Nida recorded that the pain would last for 30 minutes and then be relieved for a few minutes and that the plaintiff was able to sleep overnight, but awoke at about 6.30am on 27 June 1996 with further pain which was relieved with nitrate, but the pain onset again at 8am.  Dr Von Nida recorded that the pains on 26 June 1996 were relieved, but not resolved completely with nitrates.  Dr Von Nida did record that on examination the plaintiff was initially very distressed and a poor historian. 

1. Dr Von Nida diagnosed an acute anteroseptal myocardial infarction. 

1. The plaintiff remained an inpatient at the hospital between 27 June and 4 July 1996.  During the course of her evidence the plaintiff described incidents that occurred during the stay at the hospital which clearly distressed her, but which have no relevance, whatsoever, to the matters in issue in this proceeding. 

1. During this period of treatment at the hospital, the plaintiff was seen by Dr Coverdale.  During the course of his evidence, he expressed the opinion that the history that was taken by Dr Smart was consistent with acute coronary ischaemia or lack of blood flow to the heart muscle and the fact that it was associated with the additional features of shortness of breath and sweating raised the possibility of the plaintiff’s having a heart attack.  When asked whether the plaintiff did have a heart attack on that occasion, Dr Coverdale stated that there was subsequent evidence of a very small heart attack.

1. The plaintiff found out about the dispensing of Veracaps, as a result of a discussion she commenced with Dr Sinclair during a consultation on 8 July 1996.  The plaintiff asserted that the medication nearly killed her and described the medication.  Dr Sinclair disputed the plaintiff’s description.  The plaintiff returned home and telephoned Dr Sinclair’s surgery and left a message describing the Veracaps packet.  The plaintiff stated that Dr Sinclair telephoned her later that day and said:

“Noreen, you should never have been given that medication.  It was taken off the list for people with your serious condition.”

Dr Sinclair was not called as a witness.  This evidence about what Dr Sinclair informed the plaintiff about the medication was admitted to show how the plaintiff found out about the medication not being Cardizem and was not admitted as an opinion about the effect of Veracaps on the plaintiff.

Subsequent medical history

1. The plaintiff underwent an exercise thallium study on 14 August 1996.  The report from Northcoast Nuclear Medicine dated 14 August 1996 is incorporated in Ex 16.  The result of the study was expressed in this report as follows:

“Low exercise capacity limited by chest tightness.  Positive ECG changes.  The thallium study is very abnormal indicating left ventricular dysfunction with exercise with evidence of a relatively large apicoanterior infarction with only a small element of ischaemia demonstrated in the high anterior wall suggesting that there is only a limited amount of residual viability at the infarct site.”

1. Dr Masterson performed angiography on the plaintiff on 21 November 1997 at the Prince Charles Hospital.  He concluded that there was two vessel coronary disease and segmental left ventricular dysfunction which was moderate to severe.  According to the hospital records, the plaintiff was still smoking 15 to 20 cigarettes per day at the time of this admission. 

1. The plaintiff stated that she was diagnosed with diverticulitis last year to which she attributed much of the pain she had been suffering over the years, but claimed that it had remained undiagnosed until 2001. 

1. The plaintiff had been consulting Dr Gardner about a coronary bypass operation.  By the letter dated 19 July 2001 (Ex 10) Dr Gardner advised that he did not think surgery would provide the plaintiff with the benefits that she thought it would and would carry a significant risk given the plaintiff’s other problems. 

1. When the plaintiff’s vascular surgeon, Dr Karl Schulze, reported to Dr Herdy by letter dated 23 July 2001, he stated:

“Recent investigations demonstrate a 4cm abdominal aortic aneurysm and ectasia of the thoracic aorta.” 

1. The plaintiff commenced to lose her hair in mid 2001.  Dr Herdy described her widespread hair loss in his report dated 30 August 2001 (Ex 5) and it is shown in the photographs which are Ex 6.

Pharmacological evidence

1. Dr Brown provided a written report (Ex 18) and gave extensive oral evidence about the nature and effects of verapamil and diltiazem.  Dr Brown’s evidence was so detailed, it is not possible to do justice to it by summarising it.  I found Dr Brown’s explanations to be informative and of great assistance.  I have no hesitation in acting on his evidence and opinions.

1. By way of background, Dr Brown explained that calcium is an important ion in the cardiovascular system in that increasing calcium in the muscle cells of the heart leads to an increased force of contraction of the heart which may be necessary to treat heart failure, but increasing calcium in the vascular smooth muscle cells of blood vessels causes contraction and narrowing of the blood vessels and increasing calcium in the sinoatril and atrioventricular nodes of the heart increases the rate of contraction which may cause a general increase in blood pressure or may cause a spasm in one section of a single blood vessel.  Dr Brown stated that increased calcium influx into cells may be one factor leading to hypertension and angina.  Dr Brown stated that compounds which decrease calcium entry are called calcium entry blockers or calcium antagonists and are used to decrease blood pressure, treat cardiac rhythmic disturbances originating in the atria or atrioventricular node and relieve angina, but there is a risk of worsening heart failure by decreasing the force of contraction of the heart.    Dr Brown stated that verapamil and diltiazem are both calcium entry blockers, but are chemically distinct with their pharmacological effects being “remarkably” similar.

1. Dr Brown also stated that, like almost all drugs, the calcium entry blockers produce adverse effects in some patients with the most common effects being headache, peripheral oedema, reflex tachycardia and constipation and they are contraindicated in patients with severe left ventricular dysfunction, hypotension or shock, sick sinus node syndrome or partial or complete atrioventricular node block.  Dr Brown stated that an allergic or hypersensitive reaction to Veracaps was possible but it would be most likely seen as itchy skin or asthma.

1. Reference was made by Dr Brown to what was reported in the specialist medical and lay press in 1995 as the “calcium entry blocker controversy”.  He explained that several epidemiological studies reported that hypertensive patients treated with short-acting calcium entry blockers showed an increased risk of myocardial infarction, but these issues were reviewed and rebutted by studies in 1996.

1. Dr Brown did not consider that the plaintiff changing from Cardizem to Veracaps on 24 June 1996 would have caused any effect at all, because the drugs are interchangeable.  Dr Brown stated that at the same dose, both drugs would be expected to produce similar reductions in blood pressure in a hypertensive patient and a similar reduction in the incidence of anginal attacks.  Dr Brown would expect continued treatment with calcium entry blockers to reduce the risk of myocardial infarction.  Dr Brown also stated that slow release verapamil is formulated to allow release over a 24 hour period to give a stable therapeutic response and severe adverse effects within a short time frame such as half an hour “would seem remarkably unlikely”.

1. Although the plaintiff did not call an expert in pharmacology as such, the plaintiff tendered a number of documents which she obtained from pharmaceutical companies and pharmaceutical and medical references on the characteristics of verapamil.

1. Exhibit 19 is a leaflet on Isoptin which is another brand name for verapamil.  The plaintiff relied on the following statement in this leaflet:

“Do not take ISOPTIN if you have:

*   certain other heart conditions
     (such as heart failure, a very
     slow heart rate, some irregular
     heart beats or disease of the
     heart muscle).”

Dr Brown explained that verapamil would have had no effect on the plaintiff’s ventricular premature complex.  There was no evidence that the plaintiff had heart failure, a very slow heart rate or disease of the heart muscle (cardiomyopathy).  Dr Brown also explained that calcium channel blockers are used only in patients with rhythm disturbances in the heart where the ability of the heart to pump has not been compromised and they have no effect at all on rhythm disturbances beginning in the ventricle.  

1. Exhibit 20 is a leaflet on Veracaps SR sponsored by Sigma Pharmaceuticals Pty Ltd.  The leaflet was prepared in May 1997 and updated in January 1999 and April 2000.  It describes the use of Veracaps SR:

“VERACAPS SR is used for the treatment of essential hypertension (high blood pressure) or angina pectoris (severe chest pain with heart disease), but it is not for the relief of a sudden attack of angina.”

1. An extract from Pharmaceutical Care Info Service CD-Rom November 1997 on calcium channel blocking agents comprises Ex 21.  It deals with the characteristics of each of the calcium channel blocking agents.  I could find nothing in this document which contradicted the opinions expressed by Dr Brown.

1. Exhibit 22 was provided to the plaintiff by a pharmacist and Dr Brown identified it as information on Veracaps taken from a publication similar to MIMS which is a book distributed by drug companies containing information about available drugs and stated that it was a more technical version of the leaflets marked Exs 19 and 20.  There was also nothing in Ex 23 which was another extract on verapamil from a book giving information about drugs that affected the opinion of Dr Brown.

1. The plaintiff relied on Ex 24 which was also another extract on verapamil from a book on drugs as supporting that the plaintiff should not have been given verapamil, as she had a heart murmur.  This extract states:

“Don’t use this drug … if the irregular heart beat is due to digoxin toxicity …
Before taking this drug tell your doctor …

·    if you are taking digoxin

·    if you have a heart murmur due to aortic stenosis.”

The evidence did not establish that the heart murmur with which the plaintiff had been identified as having on a couple of occasions was of the type that made the use of verapamil inadvisable. 

1. Nothing is added to the evidence from the extract on calcium channel blockers from the “Consumer Guide to Medicines” which is Ex 25.  

Medical evidence

1. Dr Coverdale’s specialties are internal medicine and cardiology.  He has been a member of the Queensland Health Cardiac Care Advisory Panel since 1996.  Dr Coverdale was of the opinion that the most likely cause of the plaintiff’s myocardial infarction on 27 June 1996 was the progressive nature of her underlying coronary disease with all its associated risk factors.  He described her risk factors as family history, hypertension, high cholesterol, hyperlipidemia and smoking.  He expressed the opinion that it would be “highly unlikely” that the provision of Veracaps rather than Cardizem caused that myocardial infarction.  Dr Coverdale also expressed an opinion from a clinical point of view, as to what was the likely consequence for the plaintiff of not taking Cardizem on each of 24 to 27 June 1996 and instead taking Veracaps on each of 24 to 26 June 1996.  Dr Coverdale stated that he would not have anticipated any difference at all for the plaintiff, because both medications were aimed at doing the same thing.  Dr Coverdale was asked about the deterioration in the plaintiff’s left ventricular function between 1990 and 1997 and expressed the opinion that she had had progressive coronary disease and probably had multiple small ischaemic events which had caused muscle necrosis, but that the deterioration could not be attributed in isolation to the incident for which she was admitted to hospital on 27 June 1996, as what Dr Coverdale described as “the biomarkers” were, according to him, “only marginally elevated” and “barely come into the World Health Organisation definition of myocardial infarction”.  Apart from stating that a subsequent stress test was negative, Dr Coverdale did not comment on the report from Northcoast Nuclear Medicine dated 14 August 1996 where it was stated that the thallium study was “very abnormal indicating left ventricular dysfunction with exercise”.     

1. Dr Coverdale accepted that it was possible that the plaintiff could have had an adverse or allergic reaction from Veracaps, but that it would have manifested itself in a rash, difficulty in breathing, a drop in blood pressure, fainting or a fixed and swollen tongue, as that is how allergy normally manifests itself.  Dr Coverdale considered it was “highly unlikely” that the plaintiff had an allergic reaction to verapamil. 

1. Dr Coverdale’s evidence was supported by the opinions expressed by Dr Brown.  Even without the benefit of Dr Coverdale’s express comments on the report from Northcoast Nuclear Medicine dated 14 August 1996, I accept that Dr Coverdale as a cardiologist who had the benefit of treating the plaintiff between 1990 and 1992 and then in 1996 was in a good position to be able to provide an opinion on the cause of the plaintiff’s incident on 27 June 1996.  Although Dr Coverdale is employed by the defendant, his evidence was noteworthy for the fact that he endeavoured to be helpful and informative during his extensive cross-examination by the plaintiff. 

1. Dr Gardner disclaimed being an expert in medications, as they are prescribed by the cardiologists.  The plaintiff sought to rely on statements made to her by Dr Gardner during a consultation as an expression of expert opinion that it was quite possible that taking the Veracaps may have caused her heart attack.  According to the letter which the plaintiff wrote to Dr Gardner on 16 June 2001 (Ex 11) on 25 February 2000 the plaintiff showed Dr Gardner the Veracaps packet which was dispensed to her and she has recorded that Dr Gardner responded “You were off your Cardizem for three days?”, that she responded “Four days, could the Veracaps have caused my heart attack?” and that was when Dr Gardner responded “It’s quite possible they may have”.  In the same letter the plaintiff records that she asked Dr Gardner about the medications on 27 April 2001 and that Dr Gardner replied “Many medications can have adverse effects”.   

1. Dr Gardner accepts that he may have said what is attributed to him by the plaintiff, but he resiled from that in writing in his letter dated 19 July 2001 to the plaintiff (Ex 10) in which he stated:

“The second issue is your recent correspondence regarding your alteration in medication … prior to your heart attack.  I am afraid that in my opinion it is not possible to say whether this would have had any deleterious effect to the point where it would have precipitated an myocardial infarction and I am sorry I can’t help you further in this issue.”

1. Dr Gardner confirmed in his oral evidence that he was not in a position to support that opinion and could not make any comments one way or the other regarding that. 

1. The plaintiff put to Dr Masterson that during her consultation with him on 3 October 1997 she asked whether Cardizem and Veracaps were different and whether Veracaps was to “thin and slow the heart down” and that Dr Masterson responded “Yes”.  In oral evidence Dr Masterson stated that he could not recall that exchange.  Dr Masterson did not adopt that statement as the opinion he held, during the course of giving evidence.  He stated that verapamil and diltiazem can be used interchangeably.  He stated that if the plaintiff had left ventricular dysfunction, what Veracaps would have done was to have slowed the plaintiff’s heart beat and caused her to be in heart failure and would not cause a heart attack.  Dr Masterson also referred to the “calcium entry blocker controversy” and that the World Health Organisation had undertaken clinical trials which showed that verapamil and diltiazem do not cause heart attacks.  Dr Masterson expressed the view that those trials had shown that, if anything, verapamil prevents heart attacks.  The plaintiff’s complaint about what Dr Masterson recorded in his report to the plaintiff’s solicitors dated 14 October 1997 as his understanding of the plaintiff’s claim that she was given Cardizem SR 240mg in lieu of Cardizem 60mg qid is not relevant to the issues in this proceeding.  

1. The plaintiff sought to rely on a referral letter sent by Dr Herdy to Dr Schulze dated 29 August 2002.  That letter under the heading “Allergies” lists verapamil.  Dr Herdy explained that the letter was a computer generated proforma letter which uses the word “Allergies”, but it is intended to cover allergies and adverse reactions.  Dr Herdy also explained that the reason that he listed verapamil (together with asasantin) under the heading “Allergies” was that the plaintiff had complained of having sustained an adverse reaction in the past to those medications.  That letter therefore does not amount to an expert opinion on the part of Dr Herdy that the plaintiff has an allergy to verapamil.

Onus

1. The plaintiff must establish on the balance of probabilities that she suffered a progressively worsening angina attack from 24 June 1996 until she was hospitalised on 27 June 1996 and that severe angina attack has caused permanent damage to her heart.  It is a question of considering all the evidence and making findings where there are discrepancies in the evidence.  It is not possible in reasons for judgment to recite every aspect of the evidence.  Needless to say, I have carefully reviewed the oral evidence and read the documentary evidence.  There were many instances when the plaintiff pursued matters during the hearing that were not relevant to the issues that needed to be resolved in this proceeding.  I will not be dealing in any way with those extraneous matters that were important to the plaintiff, but had no bearing on this proceeding.

Findings

1. Mr Boddice of Senior Counsel who appeared on behalf of the defendant submitted that the plaintiff’s evidence as to suffering some pains and difficulty in breathing soon after she had taken the capsules on 24 and 25 June 1996 should not be accepted, as that was inconsistent with the history given by the plaintiff to Drs Smart and Von Nida when admitted to the hospital on 27 June 1996.  The defendant also points to the fact that the plaintiff’s recollection of what occurred on 24 and 25 June 1996 did not accord with the evidence of Mr Chapman.  Mr Chapman did not seem to have a particularly clear recollection of these events and I did not find his evidence of any assistance in deciding whether or not I should accept the plaintiff’s evidence.  The defendant also relies on a submission that the plaintiff is a poor historian in terms of her past medical history.

1. On the evidence given by the plaintiff, the symptoms from which she suffered were much more severe on 26 and 27 June 1996 than they were on 24 and 25 June 1996.  When the plaintiff was admitted to the hospital on 27 June 1996, she did not know then that she had been taking Veracaps instead of Cardizem.  It is not surprising that the history given by the plaintiff on being treated at the hospital on 27 June 1996 referred only to the symptoms suffered from the previous day.  I accept that the plaintiff suffered the lesser symptoms which she described as experiencing on 24 and 25 June 1996, but did not attribute significance to them, until she discovered that she had been dispensed Veracaps.  I find, however, that the respective histories taken from the plaintiff by Drs Smart and Van Nida accurately record what each was told by the plaintiff on 27 June 1996 and that was likely to be the most accurate recollection by the plaintiff of what had been suffered by her on 26 and 27 June 1996. 

1. Although the plaintiff pleads that it was a worsening angina attack that she was suffering from commencing on 24 June 1996, the case of the defendant is that the plaintiff suffered an acute myocardial infarction on 27 June 1996.  The medical evidence supports the defendant’s position.  Mr Boddice did not take the point that the plaintiff could not succeed in her claim, if I found that she had suffered from a myocardial infarction on 27 June 1996.  In fact Mr Boddice’s admissions proceeded on the basis, quite properly, that what was in issue was whether the incident for which the plaintiff was hospitalised on 27 June 1996 was caused by the defendant’s negligence, whether it be called a severe angina attack or a myocardial infarction.  I find that the plaintiff did suffer from a mild myocardial infarction on 27 June 1996.

1. The real issue in this proceeding is whether that myocardial infarction was precipitated by the taking of Veracaps by the plaintiff on 24, 25 and 26 June 1996 in lieu of Cardizem.

1. As a non-medical person, the plaintiff’s complaint is that the pharmacist substituted Veracaps, she thought she was taking Cardizem and therefore had no warning or care in relation to any effect on her of the change in medication, there was no monitoring of her as a result of the change in medication and that she suffered a heart attack on 27 June 1996 after taking Veracaps for three days and not taking Cardizem.  The plaintiff is able to show a link between the timing of the heart attack on 27 June 1996 and the taking of Veracaps instead of Cardizem.  That coincidence in time has to be considered, however, against the relevant medical and pharmacological evidence.  That evidence which I have summarised is overwhelmingly against it being likely that the plaintiff’s heart attack on 27 June 1996 was due to the plaintiff taking Veracaps for three days and not taking Cardizem.  The symptoms which were noted on the plaintiff’s admission to the hospital and the other symptoms described by the plaintiff as being experienced by her on 24 and 25 June 1996 do not support a finding that the plaintiff had suffered an allergic or adverse reaction to verapamil.

1. The plaintiff’s approach to her case of relying on the comments made to her by doctors in circumstances that were not intended to be the giving of considered opinions for the purpose of litigation and on sentences taken in isolation from pharmaceutical publications without the benefit of putting that information into context by reference to the plaintiff’s overall medical history could not displace the medical and pharmacological evidence put forward by the defendant and supported by the evidence of Drs Gardner and Masterson.

1. The plaintiff has failed to discharge the onus which she bears to establish the liability of the hospital for her heart attack on 27 June 1996.

1. It follows that the proceeding must be dismissed.  I will hear submissions from the parties on the question of costs.