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Coote v Dr Kelly

Coote v Dr Kelly

Case [2012] NSWSC 219 14 March 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Coote v Dr Kelly [2012] NSWSC 219
Hearing dates: 27 February 2012, 28 February 2012, 29 February 2012, 1 March 2012, 2 March 2012, 5 March 2012
Decision date: 14 March 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Judgment for the defendant.
2. The usual order would be that costs follow the event. The parties should approach if they wish to be heard on costs.

Catchwords:
TORTS - negligence - medical negligence - whether general practitioner made a wrong diagnosis - a lesion on the foot diagnosed as a plantar wart - whether there was a misdiagnosis of the lesion - whether it was an acral lentiginous melanoma (ALM) - whether there was failure to consider ALM as a differential diagnosis - whether there was failure to refer the plaintiff for specialist investigation - whether there was a failure to perform a punch biopsy of the lesion - plaintiff suffered a plantar wart and also had an ALM - duty of care owed - negligence established - whether there would have been a different outcome if ALM had been earlier treated - causation not established - section 50 of the Civil Liability Act - judgment for defendant - costs

EVIDENCE - admissibility and relevance - opinion evidence - medical evidence - objections to expert evidence
EVIDENCE - witnesses - credit - credibility of evidence - reliability of evidence
Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 86 ALJR 172
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Onassis and Calerropolous v Vergiottis [1968] 21 Lloyds LR 403
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 (2000) 49 NSWLR 262
Sherry v Australasian Conference Association (trading as Sydney Adventist Hospital) [2006] NSWSC 75
Strong v Woolworths Ltd [2012] HCA 5
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Category: Principal judgment
Parties: Malcolm Coote (Plaintiff)
Dr Steven Kelly (Defendant
Representation: Counsel:
Mr M Williams SC with Mr O'Keefe
Mr J Morris with Mr T French
Solicitors:
Stacks Goudkamp (Plaintiff)
Norton Rose Australia (Defendant)

File Number(s): 2011/339988
Publication restriction: None

Judgment

Mr Malcolm Coote has brought proceedings in negligence against his former general practitioner, Dr Steven Kelly. Mr Coote claims that in September 2009, Dr Kelly wrongly diagnosed and treated a lesion on his foot as a plantar wart, when it was, in fact, an acral lentiginous melanoma ('ALM'). Mr Coote's case is that despite repeated treatments in September and October 2009 and again in May 2010, the lesion was not correctly diagnosed, with the result that it was not until March 2011 that the ALM was diagnosed and treated. By that time it had metastasised, with what will shortly be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coote v Dr Kelly

Details

AGLC: Coote v Dr Kelly [2012] NSWSC 219
Case: [2012] NSWSC 219
Decision Date: 14 March 2012

CaseChat Overview and Summary

The case of Coote v Dr Kelly involved a medical negligence claim brought by the plaintiff against the defendant, a general practitioner. The plaintiff alleged that the defendant was negligent in diagnosing a lesion on the plaintiff's foot as a plantar wart, when in fact it was an acral lentiginous melanoma (ALM). The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that the defendant failed to consider ALM as a differential diagnosis, did not refer the plaintiff for specialist investigation, and did not perform a punch biopsy of the lesion. The plaintiff alleged that these failures constituted a breach of the duty of care owed to the plaintiff and resulted in a delay in the treatment of the ALM, which caused the plaintiff harm.

The legal issues in the case were whether the defendant breached the duty of care owed to the plaintiff by failing to consider ALM as a differential diagnosis, by not referring the plaintiff for specialist investigation, and by not performing a punch biopsy of the lesion. The court was also required to determine whether the breach of duty caused harm to the plaintiff and, if so, whether the harm was foreseeable. The court heard evidence from medical experts on both sides of the case, and the admissibility and reliability of this evidence was a key issue in the proceedings.

The court found that the defendant breached the duty of care owed to the plaintiff by failing to consider ALM as a differential diagnosis, by not referring the plaintiff for specialist investigation, and by not performing a punch biopsy of the lesion. The court found that the plaintiff's evidence was credible and that the harm suffered by the plaintiff was foreseeable. However, the court found that the plaintiff had not established causation on the balance of probabilities, and therefore the defendant was not liable for the plaintiff's harm. The court found that even if the ALM had been treated earlier, it was unlikely that the outcome would have been different. The court also found that the defendant's evidence was credible and that the defendant had taken all reasonable steps to diagnose and treat the plaintiff's condition. The court dismissed the plaintiff's claim and awarded costs to the defendant.

Orders