Curran v Yaramati

[2023] NSWDC 546

District Court

New South Wales

Medium Neutral Citation:

Curran v Yaramati [2023] NSWDC 546

Hearing dates:

13-17 March 2023; 11 May 2023; 10-12 July 2023; 3‑4 October 2023; 20 October 2023 (written submissions – plaintiff); 6 November 2023 (written submissions - defendant); 9 November 2023 (oral submissions)

Date of orders:

6 December 2023

Decision date:

06 December 2023

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Verdict and judgment for the defendant;

(2) The Statement of Claim proceedings are dismissed;

(3) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed;

(4) Liberty to either party to apply for a different costs order to that set out in (3) above within 14 days of today.

Catchwords:

PROFESSIONS – medical profession - medical negligence – breach – causation - Civil Liability Act 2002 (NSW), ss 5O, 5B, 5C, 5D

TORTS – negligence – medical negligence – Civil Liability Act 2002 (NSW) ss 5O, 5B, 5C and 5D – failure of defendant general practitioner to arrange testing or treatment for coeliac disease – whether negligent in the circumstances

Legislation Cited:

Civil Liability Act 2002 (NSW)

Cases Cited:

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Bridges-Cole v Hussain [2023] NSWSC 18

Dean v Pope [2022] NSWCA 260

Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335

Lloyd v Thornbury [2019] NSWCA 154

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

SouthWestern Sydney Local Health District v Gould [2018] NSWCA 69

Sparks v Hobson [2018] NSWCA 29

Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182

Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

Venues New South Wales v Kane [2023] NSWCA 192

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Williams v Fraser [2022] NSWCA 200

Category:

Principal judgment

Parties:

Michael Curran (Plaintiff)
Veerendra Giri Yaramati (Defendant)

Representation:

Counsel:
A D Campbell (Plaintiff)
L P McFee (Defendant)

Solicitors:
Kate Williams Medical Law Partnership (Plaintiff)
Barry Nilsson (Defendant)

File Number(s):

2021/00307430

Publication restriction:

No

TABLE OF CONTENTS

JUDGMENT   - paragraph 1

The pleadings - paragraph 5

Background facts - paragraph 13

The expert evidence

Plaintiff’s expert medical reports

Report of Dr Bernard Kelly - paragraph 48

Report of Dr Ken Mackey - paragraph 51

Reports of Dr Flecknoe-Brown - paragraph 59

Defendant’s expert medical reports

Report of Dr Christopher Pitt - paragraph 66

Reports of Dr Christopher Vickers - paragraph 69

Conclave joint report of Dr Flecknoe-Brown and Dr Vickers - paragraph 78

Medical records and consultation notes - paragraph 104

The lay evidence

Oral evidence of the plaintiff - paragraph 108

Oral evidence of the defendant - paragraph 160

Joint report of Dr Mackey and Dr Pitt dated 24 February 2023 - paragraph 266

The oral evidence of the causation/damages experts - paragraph 270

The evidence of the general practitioner liability experts - paragraph 300

The submissions of the parties - paragraph 357

Applicable legal principles - paragraph 362

Section 5O of the CLA - paragraph 363

Standard of care if s 5O of the CLA is inapplicable - paragraph 377

Causation - paragraph 381

Findings - paragraph 386

The plaintiff - paragraph 388

Dr Yaramati - paragraph 391

Does the plaintiff now have coeliac disease? - paragraph 397

The 2015 test results – what steps should reasonably have been taken - paragraph 401

The plaintiff’s diarrhoea and symptoms - paragraph 418

The plaintiff’s referrals to specialists and dietitians in the 2015-2020 period - paragraph 432

The plaintiff’s weight loss - paragraph 437

The plaintiff’s falls - paragraph 450

The colonoscopies performed on the plaintiff from 2017-2019 - paragraph 454

The 2019 hospital admissions - paragraph 458

The plaintiff’s electrolyte issues, anaemia and osteoporosis diagnoses - paragraph 463

The August 2020 hospital admission and biopsies - paragraph 480

The September 2020 hospital stay and biopsies - paragraph 491

September-December 2020 - paragraph 501

Overall conclusions from the above findings - paragraph 510

The Defence under section 5O of the CLA - paragraph 513

Duty and breach of duty - paragraph 520

Causation - paragraph 527

Damages - paragraph 535

Determination - paragraph 545

JUDGMENT

1. In these proceedings, the plaintiff, Mr Michael Curran, claims damages in the tort of negligence against the defendant, Dr Veerendra Giri Yaramati, for alleged breaches of a duty of care owed by the defendant to Mr Curran in the period 2015-2020. It is alleged that the defendant who was a general practitioner failed in breach of duty to diagnose potential coeliac disease in the plaintiff, to refer the plaintiff for testing and to provide appropriate advice. Dr Yaramati denies any breach of duty of care, and also asserts that causation and damages have not been established by the plaintiff. In addition, Dr Yaramati has pleaded a defence under section 5O of the Civil Liability Act 2002 (NSW) (“CLA”).

2. At all relevant times, Dr Yaramati was a general medical practitioner practising at Urana, a country town in the Riverina region of New South Wales. The plaintiff, who was born in April 1947 and was nearly 76 at the commencement of the final hearing, was a patient of Dr Yaramati and a retired jockey and horse trainer.

3. The plaintiff had many medical consultations with general practitioners and specialists, including particularly Dr Yaramati, in the period from 2015-2020. In due course, in December 2020, the plaintiff consulted a Dr Chan in Corowa who diagnosed the plaintiff with coeliac disease after arranging for a test. After altering his diet to remove wheat and gluten products, the plaintiff reported experiencing a noted improvement in his health. It is the alleged negligent delay in diagnosing the plaintiff’s coeliac disease and referring him for testing for it which is at the centre of the plaintiff’s claim against the defendant. In the course of the hearing, a voluminous quantity of medical notes, records and correspondence was tendered. In addition, the plaintiff, Mr Curran, was cross-examined in detail about his symptoms and consultations with various doctors, particularly Dr Yaramati, in the period from 2015 to 2020.

4. The plaintiff’s damages as claimed were set out in his Schedule of Damages provided to the Court for the purposes of the hearing. These were limited to non-economic loss, past out-of-pocket expenses and future out-of-pocket expenses.

The pleadings

5. The plaintiff commenced proceedings against the defendant by a Statement of Claim filed on 29 October 2021.

6. By an Amended Statement of Claim filed on 12 December 2022, the plaintiff pleaded that he resided in Urana and that the defendant was a qualified medical practitioner who at all material times practised as a general practitioner at the Urana Medical Centre in Urana. In paragraphs 3 to 68 of the Amended Statement of Claim, the plaintiff pleaded his various symptoms, consultations and diagnoses with various medical practitioners and dietitians in the period from March 2015 to 24 December 2020, when he consulted with Dr Chan. From paragraph 69 in the Amended Statement of Claim, the plaintiff pleaded that the defendant as a general practitioner owed the plaintiff a duty of care to exercise reasonable care and skill in providing treatment to the plaintiff from 2017 onwards to 2020. It is alleged that the defendant ought to have conducted a necessary and thorough assessment of the plaintiff’s gastrointestinal symptoms in order to discharge the duty of care owed to him. It is also pleaded that there was a risk of harm from a failure to take all necessary steps to ensure that the plaintiff’s gastrointestinal condition was diagnosed including ordering tests to detect coeliac disease and provide dietary advice in 2017. It is pleaded that the defendant ought to have known of the risk of harm and that the risk of prolonged and severe gastrointestinal symptoms would occur in the absence of proper diagnosis. It is alleged that the risk of harm pleaded was foreseeable.

7. The breaches of duty of care alleged are particularised in paragraph 75 of the Amended Statement of Claim as follows:

“75.  In breach of the Defendant’s duty of care owed to the Plaintiff, he failed to take reasonable precautions against the risk of harm as would reasonably competent General Practitioner [sic] in Australia.

PARTICULARS OF THE BREACH OF DUTY

(a)  Failing to order and carry out any appropriate testing for the cause of the Plaintiff’s diarrhoea after 2015.

(b)  Failing to order and carry out any appropriate testing to investigate the cause of the Plaintiff’s abnormal blood pathology after 2015.

(c)  Failing to ensure that an assay blood test to detect Coeliacs diseases [sic] was ordered and undertaken by December 2015, and anytime thereafter.

(d)  Failing to provide dietary advice to the Plaintiff to eliminate wheat and gluten by December 2015, and thereafter.

(e)  Failing to investigate the cause of the Plaintiff electrolyte imbalance [sic] at any time.

(f)  Allowing the Plaintiff’s drastic weight loss to continue between 2018 to 2020.

(g)  Permitting the Plaintiff to become systemically unwell for over 3 years.”

8. It is also pleaded that the plaintiff’s injuries and disabilities were caused or materially contributed to by the defendant’s breach of duty of care. It is said that but for the breach of duty, the plaintiff would have been diagnosed with coeliac disease by late 2015. In paragraph 78 of the Amended Statement of Claim, very extensive particulars of injuries and disabilities are provided including chronic diarrhoea, abdominal pain, significant weight loss, osteoporosis, chronic malaise and chronic malnutrition as well as various deficiencies in vitamins, anaemia, weakness and falls due to a loss of balance in the context of dizziness and low energy. It is also particularised that as a result of the breach of duty of care by the defendant, the plaintiff experienced unnecessary colonoscopies, specialist referrals and investigations.

9. In his Amended Defence filed on 12 January 2023, the defendant denies liability. In the Defence, the defendant positively replies to a number of the paragraphs in the plaintiff’s Amended Statement of Claim setting out the alleged history of the plaintiff’s consultations with the defendant.

10. In paragraphs 60-61 of the Defence, the defendant pleads as follows:

“60. Further, in answer to the whole of the Statement of Claim, the defendant relies on section 5O of the Civil Liability Act 2002 (NSW) and says that in the provision of professional services to the plaintiff as a general practitioner, he acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice.

Particulars

(a)  as provided by the report from Dr Christopher Pitt, General Practitioner, dated 15 April 2022 and Dr Christopher Vickers, Gastroenterologist, dated 11 April 2022.

(b)  The defendant’s management is consistent with competent peer practice.

(c)  The defendant took appropriate histories, performed examinations, ordered appropriate investigations, and provided appropriate management advice and referrals.

61. Further, if, which is denied, section 5O of the Civil Liability Act 2002 (NSW) required the defendant to establish that he acted pursuant to a practice that was in existence at the relevant time, then the defendant says that the manner in which he acted including doing the things referred to in paragraph 25 above, accorded with or was pursuant to a practice that was in existence at that time.”

11. The defendant also did not admit the plaintiff’s injuries, loss and disabilities as pleaded by the plaintiff. Causation is also disputed.

12. The hearing was adjourned on a number of occasions due to the availability of expert witnesses, counsel and the Court.

Background facts

13. A number of background facts were established in the course of, and by, the evidence. Unless otherwise indicated, what follows are the Court’s findings in relation to the background facts.

14. As indicated above, the plaintiff was born in April 1947. He was nearly 76 years of age at the commencement of the final hearing. The plaintiff went to school in Melbourne and left school at 13 years of age to become an apprentice jockey. After finishing a period as a jockey, the plaintiff became a horse trainer. He currently works as a caretaker at a large grain farm.

15. In the course of the plaintiff’s career, he had numerous falls from horses which resulted in injuries to his shoulders. The plaintiff received workers compensation payments for various periods because of his falls.

16. In around 2003, the plaintiff had surgery to his right shoulder for a torn tendon.

17. Surgery to the left shoulder followed in 2004. At about this time, the plaintiff also had bilateral hip replacements.

18. The medical records suggest that in 2005 after his various shoulder and hip operations, the plaintiff undertook some bus driving. In 2008, the medical consultation notes record him as saying that he had started driving the school bus in Urana.

19. The medical consultation notes record the plaintiff suffering urinary problems including with urinary tract infections from 2008. I accept this was the position. The plaintiff was referred to a specialist urologist at this time and the medical records note a history of acute urinary retention with a catheter being inserted to allow the draining of urine (Plaintiff Court Book, Exhibit 2 (“PCB or PTB”) page 212 - consultation with Dr Geary on 13 March 2008). The plaintiff was prescribed antibiotics and his problems continued with urinary retention over the next few months. In cross-examination, the plaintiff had no recollection of this treatment and, in particular, he denied himself inserting a catheter despite records suggesting that he had (PCB page 213 - consultation with Dr McCurdy on 28 July 2008). The plaintiff’s recollections were generally poor and I accept the accuracy of these notes in the absence of other more cogent evidence.

20. In June 2009, Mr Curran undertook a transurethral resection of the prostate because of urinary problems and ongoing risk to his bladder and kidneys (PCB page 215 - consultation with Dr McCurdy on 10 June 2009).

21. The medical notes record various urinary tract infections in the plaintiff in 2010.

22. On 23 January 2015, the plaintiff first saw Dr Yaramati, the defendant, as a new patient. I set out in some detail below the plaintiff’s relevant consultations with doctors in the period from 2015 to 2020 as revealed in the consultation notes and medical records in evidence.

23. As set out below, in his oral evidence the plaintiff was a very poor historian. He appeared to have little recollection of the discussions in consultations with various doctors, including the defendant. He also appeared to have a very poor recollection of timing and, in a number of cases, did not have any recollection of significant surgery or hospital admissions. The plaintiff also appeared to have recollections as to his weight at different times which were inconsistent with the medical records in evidence.

24. What is clear from the evidence is that the plaintiff saw the defendant Dr Yaramati as his general practitioner on numerous occasions in each year in the period 2015 to 2020.

25. Following complaints by the plaintiff disclosing urinary tract infections and bladder issues, the defendant undertook wide ranging blood tests and referred the plaintiff to Dr Lewin, a urologist, in February 2015 due primarily to highly elevated PSA (Prostatic Specific Antigen) levels. Various further tests were ordered by the defendant and Dr Lewin. In March 2015, Dr Lewin found an abnormal prostate on examination of the plaintiff. The plaintiff was reported to have had symptoms suggestive of prostate cancer. In April 2015, biopsies revealed a high risk of prostate cancer which was likely to be metastatic. In due course, Dr Lewin diagnosed the plaintiff with prostate cancer and referred him to Dr Ong, oncologist, for radiation therapy and treatment.

26. Thereafter, the plaintiff had numerous reviews by Dr Ong. In June 2015, Dr Ong diagnosed the plaintiff with stage IV prostatic adenocarcinoma with metastases but noted that the plaintiff had normal bowel function.

27. By November 2015, it appears the plaintiff had completed a course of radiation therapy (Exhibit 3, Defendant’s Tender Bundle (“DTB”), volume 2/574). This treatment caused side-effects which eventually led to a diagnosis of radiation proctitis with some rectal bleeding. Androgen deprivation therapy was commenced to attempt to counteract some of the effects of the radiation treatment.

28. Various blood tests arranged by the defendant in January 2015 and December 2015 indicated low vitamin B12 and serum folate levels in the plaintiff (DTB 2/295; 2/338). Red cell folate levels were reported as normal in both tests. As a consequence of the low B12 and serum folate levels, the defendant injected the plaintiff with B12 vitamins and prescribed tablet folate supplements on numerous occasions. The defendant also, from February 2016, gave the plaintiff injections for his prostate cancer. It seems that the plaintiff completely ceased radiation therapy in about November 2015 (DTB 2/580).

29. At various times, the plaintiff was referred to Dr Schmidt, a general surgeon who also performed gastroenterology procedures, for review, particularly in the context of per rectal bleeding. Dr Schmidt performed a number of colonoscopies on the plaintiff from 2017 to 2020. These are considered further below.

30. In January 2017, Dr Yaramati referred the plaintiff again to Dr Lewin because of an episode of haematuria, having regard to his history of prostate cancer.

31. On various occasions from 2016 (which will be referred to in some detail below), there were reports by the plaintiff of having erratic bowel function with intermittent diarrhoea. Such complaints by the plaintiff were made not only to the defendant, Dr Yaramati, but also to Dr Ong and to Dr Lewin and Wagga Base Hospital. An issue was whether this was caused by radiation proctitis, as a result of the plaintiff’s radiation therapy in 2015. The plaintiff reported diarrhoea symptoms to Dr Yaramati in June-July 2016 which resolved shortly thereafter. There were similar reports from Dr Ong to Dr Lewin and Dr Yaramati in May 2017 and to Dr Yaramati in October 2017. On the latter occasion, a history of intermittent diarrhoea with no constipation was given. Shortly thereafter, the plaintiff informed Dr Yaramati on 18 October 2017 that his diarrhoea had resolved with Gastro-Stop and his bowels had settled. No increasing symptoms of diarrhoea were apparently reported by the plaintiff at this time.

32. In February 2018, Dr Ong in a letter to Dr Yaramati copied to Dr Lewin stated that the plaintiff had no further diarrhoea. In March 2018, the plaintiff told Dr Schmidt that he did have rectal bleeding associated with diarrhoea and a colonoscopy was planned.

33. In August 2018, the plaintiff reported to Dr Yaramati of having episodic diarrhoea for a number of days, then stopping and recurring regularly. Metamucil was recommended and shortly thereafter the plaintiff reported overall feeling well with no follow-up of episodic diarrhoea. In January 2019, the plaintiff reported diarrhoea on admission to Wagga Base Hospital for an infection following blocking kidney stones. However, at that time his weight was reported as being 65kg, well above his pre-cancer diagnosis weight. It appears that no complaints of diarrhoea were made to Dr Yaramati at about that time. In February 2019, the plaintiff saw Dr Yaramati for a long consultation relating to feeling low. No weight loss or gain was reported. Shortly thereafter, the plaintiff saw Dr Eddie Ong and stated that he was well with no further diarrhoea.

34. It appears that the plaintiff saw Professor Tara Mackenzie, physician, during an early 2019 stay in Wagga Base Hospital. Dr Mackenzie reported in March 2019 on an ultrasound of the plaintiff’s abdomen which showed a fatty liver but no other abnormalities. Multiple blood tests were also undertaken. The plaintiff informed Dr Yaramati in March 2019 that he had seen Dr Mackenzie, was happy with his progress and had no concerns. In April 2019, he informed Dr Yaramati that overall, he was feeling well.

13. In June 2019, the plaintiff informed Dr Yaramati that he had constipation followed by diarrhoea for a few weeks and was using Metamucil. Soon after, in June 2019, the plaintiff saw a dietician Mr Gallo with his bowel recorded as being fluctuating. In July 2019, the plaintiff reported to Dr Yaramati that he was having chronic diarrhoea and was needing regular medications. Dr Yaramati advised the plaintiff to use Questran-Lite sachets.

14. Following this change in the pattern of his bowel habits, the plaintiff was referred by Dr Yaramati to Dr Schmidt, the general surgeon who also performed gastroenterological procedures. In August 2019, the plaintiff reported to Dr Schmidt alternating diarrhoea and constipation but with his abdomen being soft and not tender. On the same day the plaintiff saw Dr Yaramati, and said he was feeling well and was awaiting follow-up consultations with Dr Mackenzie and Dr Ong. On the same day Dr Schmidt informed Dr Ong of the plaintiff’s presentation including alternating diarrhoea and constipation.

15. In various presentations in late 2019, the plaintiff reported his bowel being normal and that he was feeling well. Similar reports were made in the first half of 2020 on various occasions. On 23 July 2020, the plaintiff saw Dr Yaramati and reported intermittent symptoms of diarrhoea. The Questran medication was increased.

16. In August 2020, the plaintiff was admitted to Wagga Base Hospital following a fall. Various tests and procedures were undertaken while the plaintiff was in hospital including a colonoscopy. The plaintiff is recorded as suffering from urosepsis at this time and was very unwell. Two biopsies were taken during the colonoscopy which did not indicate abnormal villous functionality in the small bowel, a symptom of potential coeliac disease. In the Wagga Base Hospital records for 14 August 2020 various tests are referred to. The plaintiff was referred to as having severe electrolyte derangement and anaemia. Chronic diarrhoea over the last 18 months with increasing frequency was also referred to. This level of diarrhoea was not mentioned by the plaintiff to the defendant at this time.

17. The records show that on 17 August 2020 the plaintiff left Wagga Base Hospital against medical advice. Dr Yaramati was rung up about this by an intern. The plaintiff surprisingly did not recall in his oral evidence either the hospital admission or leaving against medical advice. Dr Yaramati was told that coeliac serology testing was in progress. A small bowel biopsy undertaken in Wagga Base Hospital dated 21 August 2020 and collected on 13 August 2020 did not refer to coeliac disease. The villous morphology was described as normal and mild.

18. On 2 September 2020, the plaintiff had a consultation at Wagga Base Hospital with the gastroenterologist Registrar with a background of anaemia and chronic diarrhoeal illness. It appears the plaintiff had continuing urosepsis and remained unwell at this time.

19. On 4 September 2020, a gastroscopy and further colonoscopy were performed at Wagga Base Hospital and there was a reference in the notes to a desire to see the histology result to determine if there was any evidence of coeliac disease and/or small bowel lymphoma. Five biopsies were taken during the colonoscopy. These results were not received by Dr Yaramati until 2021 despite follow up by his practice. A letter from Wagga Base Hospital to Dr Yaramati dated 9 September 2020 referred to the plaintiff’s “partially managed coeliac disease”. However, there had been no management for coeliac disease by any medical practitioner or dietician at this time. Soon after, the plaintiff saw Dr Yaramati on 15 September 2020, where he was said to be managed for anaemia and electrolyte abnormality in the context of a gastroscopy and colonoscopy and radiation proctitis.

20. The plaintiff saw Dr Yaramati in September and October 2020, reporting some weight loss.

21. Following a telephone assessment by the community aged home nursing team (which the plaintiff did not recall in his cross-examination), the plaintiff saw Dr Aileen Chan at Corowa Medical Clinic, a general practitioner. He reported to her a history of recurrent episodes of diarrhoea and hypokalemia requiring hospitalisation. Dr Chan ordered blood tests for coeliac disease which returned positive. On 24 December 2020, the plaintiff saw Dr Chan again who informed him of the coeliac disease diagnosis and provided dietary advice. The plaintiff altered his diet and gained weight with the cessation of the consumption of wheat and gluten products.

22. The plaintiff accepted in cross-examination that he did not have a good recollection of his consultations with Dr Yaramati in the period 2015 to 2020: T31.30. I accept that evidence. This was reflected in the clearly poor recollections which he had as displayed during cross-examination. In my view, where the plaintiff’s oral evidence is inconsistent with medical records or consultation notes, unless there are other objective records suggesting inaccuracy, the medical records and consultation notes should be accepted in preference. I accept the defendant’s submission on this point.

23. The plaintiff stated that he did mention to Dr Yaramati on occasions having watery bowel movements: T76.36. He confirmed that they were a matter of concern to him. The plaintiff was not sure whether the first time he mentioned watery bowel movements after July 2016 to Dr Yaramati was in October 2017: T77.20. He also could not recall whether he was experiencing diarrhoea on a regular basis in 2017: T78.18. The plaintiff in addition could not recall whether it was not until 31 August 2018 that he reported to Dr Yaramati any episodic diarrhoea and that in the period October 2017 to August 2018 he made no complaint to Dr Yaramati about regular bouts of diarrhoea: T82.4. Later, the plaintiff conceded in cross-examination that he had bouts of diarrhoea on an infrequent basis between 2015 and 2018. He also agreed that it was not until he was very sick in 2020 that he was experiencing diarrhoea on a regular basis: T88.43-T89.11.

24. In relation to weight loss, it appears that the plaintiff had fluctuating weight particularly in the light of hormonal therapy which he received but he did not experience substantial unexplained reduction in weight until late 2020. I consider the evidence on this matter further below.

25. I find that Dr Yaramati was the plaintiff’s treating general practitioner from January 2015 until October 2020. However, in that period the plaintiff also saw Dr Lewin, urologist, on a number of occasions following referrals and also saw Dr Ong regularly following the diagnosis with prostate cancer. Dr Schmidt, general surgeon, also performed a number of gastroenterological procedures. Dr Mackenzie, physician, also saw the plaintiff at various times in 2019 and 2020. On the evidence, it was not until the plaintiff’s admissions to Wagga Base Hospital in the second half of 2020 that any medical practitioner suggested potential coeliac disease relating to the plaintiff.

The expert evidence

Plaintiff’s expert medical reports

Report of Dr Bernard Kelly

48. The plaintiff tendered a short report from Dr Bernard Kelly AM dated 22 October 2021. Dr Kelly died in 2022 before the final hearing. Parts of the report were ruled inadmissible due to a lack of reasoning being provided.

49. Dr Kelly referred to nine consultations where the plaintiff reported diarrhoea in 2017-2020 and reports of significant weight loss. Dr Kelly refers to the plaintiff weighing only 31 kilograms in November 2020 which was denied by the plaintiff and in my view was not established by the evidence.

50. Dr Kelly noted that diarrhoea may have many causes including allergies to certain foods. He expressed the opinion that food intolerance would have been high on the possible list of diagnostic problems.

Report of Dr Ken Mackey

51. The plaintiff tendered a report of Dr Ken Mackey AM. Dr Mackey is a highly experienced general practitioner with additional qualifications in obstetrics. He has held various professional positions in rural doctors’ associations and was the principal in a country medical practice for well over 20 years.

52. In his report dated 14 November 2022, Dr Mackey was critical in relation to the medical management of the plaintiff by the defendant. Dr Mackey referred to the blood pathology tests on 30 January 2015 as revealing a very high PSA count suggestive of prostate cancer as well as long-term liver dysfunction. Reference was made to December 2015 blood pathology results which revealed low vitamin B12 and serum folate levels for the plaintiff on completion of radiation therapy with liver dysfunction and electrolyte abnormalities. Dr Mackey expressed the opinion that the most common cause of the deficiencies mentioned was coeliac disease and that other serious conditions for Mr Curran were easily excluded by his medical history. The opinion is expressed by Dr Mackey that a simple blood test for coeliac disease in December 2015 would have revealed coeliac disease as the likely cause of the vitamin deficiencies and that the routine management of coeliac disease would have prevented many further complications suffered by the plaintiff.

53. In addition, Dr Mackey referred to the plaintiff’s diarrhoea episodes in October 2017 as necessitating detailed investigation. Again, he expresses the opinion that a simple blood test for coeliac disease in October 2017 would have revealed coeliac disease as the likely cause of the plaintiff’s diarrhoea and bowel dysfunction. Reference was made to anaemia being noted in May 2018 and that confirmation of the cause of this was overlooked. Some investigation could have determined the cause. Dr Mackey noted and assumed that by August 2018 diarrhoea was recurring regularly for the plaintiff. The opinion was expressed that although management for the diarrhoea was instituted, confirmation of the cause was overlooked particularly in the context of bone density concerns in November 2018 “in the extreme range”. Dr Mackey states that a simple blood test for coeliac disease in November 2018 would have revealed coeliac disease to be the likely cause of the plaintiff’s osteoporosis. Reference was made by Dr Mackey to the plaintiff’s assumed treatment at Wagga Base Hospital for serious electrolyte abnormalities in August 2020 in the context of assumed disturbed renal and liver function with considerable weight loss. A coeliac disease blood test in August 2020 would, in Dr Mackey’s opinion, have revealed coeliac disease as the likely cause of the electrolyte disturbance and weight loss. Dr Mackey expresses the opinion that there were many occasions of clinical presentation by the plaintiff, mostly related to abdominal matters, where a simple test for coeliac disease was overlooked. Reference was made to the straightforward and curative management for Mr Curran following the detection of coeliac disease in December 2020 by Dr Chan.

54. Dr Mackey noted the necessity for further testing to determine the underlying cause of various problems the plaintiff had including vitamin B12 and folate deficiency, anaemia, osteoporosis, liver dysfunction and weight loss. The opinion is expressed that in relation to Mr Curran, coeliac disease and inflammatory bowel disease were the only reasonable bases for his presentation in the context of vitamin B12 and folate deficiencies.

55. Reference was also made to the plaintiff having a number of falls in 2019.

56. In relation to the plaintiff’s radiation treatment for prostate cancer, Dr Mackey noted the inflammatory radiation proctitis and that further areas of the bowel would not have been affected.

57. Numerous health issues associated with coeliac disease were outlined by Dr Mackey in his report including unexplained abdominal pain, irritable bowel symptoms, nutrient deficiency, anaemia, osteoporosis and unexplained neurological complaints.

58. Dr Mackey expressed the opinion that a reasonable standard of general practice would have involved assessment and analysis of the many symptoms of the plaintiff including physical changes and pathology abnormalities that were made known to Dr Yaramati. The view was expressed in summary in the light of the previous opinions given that Dr Yaramati had not assessed or managed the plaintiff with the information obtained over a considerable period resulting in an exacerbation of the plaintiff’s symptoms and co-morbidities due to the failure to diagnose coeliac disease. The opinion was expressed for those reasons that Dr Yaramati had failed to exercise a reasonable standard of general practice care in managing the plaintiff from 2015.

Reports of Dr Flecknoe-Brown

59. The plaintiff also tendered two reports of (Associate Professor) Dr S Flecknoe-Brown, consultant physician and clinical pathologist.

60. In his first report dated 9 November 2021, Dr Flecknoe-Brown noted his extensive experience as a consultant physician and clinical pathologist in private practice between 1982 and 1999 after which he moved to regional areas and practised there.

61. In his first report, Dr Flecknoe-Brown provided a history in relation to the plaintiff’s treatment by Dr Yaramati. He also mentioned the analysis by Dr Chan in December 2020 of the plaintiff’s symptoms in the light of the presence of recurrent episodes of diarrhoea. He mentioned that Dr Chan ordered blood tests for coeliac screening in the context of strongly positive antibodies of the type associated with coeliac disease. It was noted that since the diagnosis in December 2020 the plaintiff had changed his diet and had improved dramatically.

62. Dr Flecknoe-Brown expressed the opinion that despite the negative small bowel biopsy reported in Wagga Base Hospital in September 2020 (it appears from the conclave report that this should be a reference to August 2020), he had no doubt that Mr Curran’s diagnosis was coeliac disease as he had responded well to appropriate treatment for it. Dr Flecknoe-Brown seemed to accept that a small bowel biopsy was essential for a diagnosis of coeliac disease because of the dramatic change in lifestyle that a diagnosis of coeliac disease imposes on the patient.

63. Dr Flecknoe-Brown expressed the opinion that the evidence established that the plaintiff probably had coeliac disease as long ago as early 2015 because of the low folate levels. The view was expressed in the report that “the combination of low folate and iron deficiency is almost unique to coeliac disease, because the small bowel dysfunction leads to malabsorption of folic acid and the chronic weeping of blood from the damaged small bowel leads to iron deficiency. The low B12 noted in Dr Yaramati’s records was almost certainly laboratory artefact resulting from the low serum folate level”.

64. In his report, Dr Flecknoe-Brown expresses the opinion that the period of five years of undiagnosed and untreated coeliac disease has exposed the plaintiff “to a risk of lymphoma which may declare itself at some time in the future”. Coeliac disease also in his view hastened the onset of osteoporosis for the plaintiff requiring lifelong treatment. Rigorous adherence to the gluten exclusion diet was seen as the most important ongoing treatment and this was largely in the plaintiff’s hands. However, the opinion was expressed by Dr Flecknoe-Brown that the plaintiff would have orthostatic hypotension for the rest of his life and this would require osteoporosis treatment for the rest of his life.

65. In his supplementary medical report dated 6 January 2022, Dr Flecknoe-Brown noted that the average life expectancy for an Australian male was 82.1 years and provided costing for treatment of the plaintiff for 7.5 years. This included ongoing physical assessments and testing and for risks of falls and risks of lymphoma. Treatment costs are set out in his report.

Defendant’s expert medical reports

Report of Dr Christopher Pitt dated 15 April 2022

66. The defendant relied on a report of Dr Christopher Pitt, general practitioner, dated 15 April 2022. In his detailed report, Dr Pitt considered the treatment and management by the defendant of Mr Curran as well as considering the expert opinion of Dr Kelly, the plaintiff’s first general practitioner expert. Dr Pitt is an experienced general practitioner who has also been the head of examiners for admission to the Royal Australian College of General Practitioners in Queensland for a number of years: T619.50.

67. In the plaintiff’s written submissions in chief, a number of criticisms are made of the evidence given by Dr Pitt (paragraphs 29-32). Dr Pitt is described as argumentative and dismissive of the views of Dr Mackey. It is fair to say that Dr Pitt was a person of strong opinion, and he could be dismissive of contrary opinions. However, overall, I found his evidence to be detailed and thorough. I accept the defendant’s submission on that point.

68. It is unnecessary to go through in detail Dr Pitt’s lengthy and thorough analysis. Some more important opinions expressed by Dr Pitt in his report are as follows:

1. Dr Pitt expressed the opinion that Dr Yaramati’s performance as the plaintiff’s general practitioner was consistent with reasonable and competent professional practice widely accepted by peer professional opinion - paragraph 6. Dr Yaramati, in his view, performed appropriate examinations and ordered appropriate investigations relevant to the clinical context and probability diagnoses and provided appropriate care to the plaintiff;

2. Episodic diarrhoea is a common presentation in general practice, the causes of which are typically benign and the cause self-limiting. Radiation treatment also is a cause of diarrhoea in patients who have undergone radiotherapy to the pelvic organs. The plaintiff had patterns of recurrent intermittent self-limiting episodes of diarrhoea often separated by months at a time and there was no family history of coeliac disease. Further, he did not present to Dr Yaramati with features suggestive of coeliac disease. The plaintiff’s weight loss only became clinically significant in late 2020;

3. Given the presence of symptoms that were explained by the plaintiff’s known diagnoses and the absence of presenting features suggestive of coeliac disease, coeliac disease was not a probable diagnosis and specific investigations for coeliac disease were not warranted by Dr Yaramati - paragraph 11. With the benefit of hindsight, the earliest that any doctor could have reasonably diagnosed coeliac disease in the plaintiff was in August 2020 when there was a clinical picture of malabsorption and endoscopic evidence of loss of villi in the small bowel - paragraph 12;

4. If August 2020 was the first point at which coeliac disease was the probable diagnosis, it was unreasonable to expect a general practitioner to arrange for coeliac disease testing or to recommend a gluten-free diet prior to August 2020 - paragraph 14;

5. Dr Yaramati assessed, diagnosed and managed the plaintiff appropriately given the information prospectively available to him. Further, Dr Pitt expressed the opinion that the plaintiff did not suffer harm as a result of Dr Yaramati’s assessment and management - paragraph 15;

6. Given its broad and subtle presentation, the approach to the diagnostic challenge of coeliac disease in general practice is nuanced - paragraph 50;

7. From paragraph 56 in his report, Dr Pitt sets out what he describes as modern Australian general practice and the appropriate approach for general practitioners;

8. The plaintiff’s presentation in August 2018 with the complaint of intermittent diarrhoea in the context of an otherwise stable and unremarkable clinical picture presented no features of concern in relation to coeliac disease. Dr Yaramati’s conservative management of the plaintiff’s presentation was appropriate at the time - paragraph 69;

9. The small bowel biopsy result held by Dr Yaramati in August 2020 indicated normal villi which would make coeliac disease a less probable diagnosis for most general practitioners - paragraph 79. This would have left a reasonable general practitioner with significant doubt as to the likelihood of coeliac disease. A definitive review and opinion of a consultant gastroenterologist would be sought. See also paragraphs 95-96;

1. The plaintiff’s weight did not involve significant reduction until late 2019-2020. From early 2018 to 2019, the plaintiff’s weight demonstrated natural variation that essentially remained stable. Only a slight reduction occurred through to the second half of 2020 - paragraphs 99-100.

Reports of Dr Christopher Vickers

69. The defendant relied on two reports of Dr Christopher Vickers, consultant gastroenterologist and hepatologist, dated 11 April 2022 and 19 June 2022, respectively. Dr Vickers was the only gastroenterologist who gave medico-legal expert evidence at the hearing.

70. In his first report dated 11 April 2022, Dr Vickers sets out in summary the plaintiff’s relevant history. Reference was made to two small bowel biopsies reporting normal villi with none of the classical features of coeliac disease. However, despite the negative biopsies of the plaintiff, Dr Vickers expressed the view that it was likely that the plaintiff does have coeliac disease given his high range blood antibody tests and his fairly dramatic response to a gluten free diet. Dr Vickers expressed the opinion that his view that the plaintiff had coeliac disease was “heavily focused on the hindsight knowledge after December 2020 when Mr Curran introduced a gluten-free diet”. The view was expressed that it was likely that the plaintiff had coeliac disease since the time he was first introduced to gluten wheat products at the age of one as an infant. Dr Vickers expressed the opinion that an adult presenting with severe weight loss, electrolyte and mineral deficiencies with diarrhoea and debility such as the plaintiff, was a very rare presentation indicating a final decompensated state of long-standing or latent coeliac disease possibly due to the radiotherapy which the plaintiff had in 2015.

71. Dr Vickers considers the plaintiff’s presentation prior to 2017 and expresses the opinion that Dr Yaramati provided appropriate and reasonable treatment for all of the various deficiencies. In addition, he expresses the view that the vitamin B12 deficiency was not likely due to coeliac disease. The iron deficiency and osteoporosis has, in Dr Vickers’s opinion, other potential causes. He was of the view that there was nothing in the history of the plaintiff that could have indicated to the defendant that an alternative diagnosis was present.

72. Dr Vickers also expresses the opinion that if the defendant had sent the plaintiff to a gastroenterologist prior to 2020, the likelihood of him being referred back with normal small bowel biopsies would have been very high considering the biopsies taken later in 2020 were normal. He expresses the opinion that there was no certainty that a gastroenterologist would order coeliac antibodies testing if he knew that the biopsies were normal.

73. Dr Vickers accepted that if the plaintiff had been diagnosed prior to December 2020 with coeliac disease that he would have had a more favourable outcome with avoiding hospital admissions for diarrhoea, electrolyte disturbance and weight loss. He would have also likely avoided frequent diarrhoeal episodes for the 18 months from early 2019 until December 2020.

74. In relation to the causes in the delay of diagnosis, Dr Vickers saw no significant increased risk of developing malignant lymphoma, no significant effect of an increased risk of developing small bowel cancer, no increased risk of developing oesophageal cancer and no significant effect of hastening the onset of osteoporosis. The view is expressed that orthostatic hypotension was not a chronic complaint related to coeliac disease, although it was plausible that the plaintiff may have had temporary orthostatic hypotension at the time of his hospitalisations for diarrhoea and fluid and electrolyte depletion. In relation to balance difficulties and falls, Dr Vickers expressed the opinion that it was not by all means certain that the plaintiff’s balance difficulties have been entirely generated by coeliac disease.

75. Dr Vickers criticised Dr Kelly’s report as being generated by hindsight and not taking into account the disparate results of the normal small bowel biopsies in the context of severe symptoms. Dr Vickers disagreed with Dr Kelly’s opinion that the plaintiff would not return to his full health despite correction of coeliac disease.

76. Dr Vickers also disagreed with Dr Flecknoe-Brown’s opinions. He notes that Dr Flecknoe-Brown did not consider the small bowel biopsies which were normal, the effect of radiation on the pelvic gut, the impact of chronic urosepsis on Mr Curran’s symptoms, debility and weight loss and the importance of low folic acid. Criticisms of Dr Flecknoe-Brown’s calculations for future costs are also made.

77. In his second report dated 19 June 2022, Dr Vickers again emphasised that the two small bowel biopsies taken in August 2020 reported as normal villi with none of the classical features of coeliac disease. Dr Vickers noted that since the coeliac disease was diagnosed, the plaintiff had been on a traditional gluten-free diet which had caused clinical resolution of his diarrhoea and weight gain. Dr Vickers said that despite the biopsies of the small bowel performed at Wagga Base Hospital, the plaintiff was clinically likely to have had coeliac disease partially due to the excellent response to the gluten-free diet. He noted that rarely biopsies may not pick up the classical features of coeliac disease. He described the plaintiff’s case in that light as “a very rare case indeed”. He gave an excellent prognosis for the plaintiff, stated that he would not expect him to be at risk of intestinal lymphoma and saw no other medical illness that would affect a normal lifespan. A consideration of the various costs in Dr Flecknoe-Brown’s report was given.

Conclave joint report of Dr Flecknoe-Brown and Dr Vickers

78. The plaintiff’s causation/damages expert, Dr Flecknoe-Brown, and the defendant’s causation/damages expert, Dr Vickers, met in conclave on 30 March 2023 and a joint report was prepared dated 21 April 2023 which was made Exhibit C in the proceedings.

79. In the report, the experts considered 11 questions put to them on behalf of the plaintiff and six questions put to them on behalf of the defendant.

80. The joint report of the two specialist experts is a lengthy and technically detailed document. In substance, the two experts maintained the opinions which they had given in their earlier respective reports. However, more detail was provided in relation to their opinions in the joint report and the document is therefore of real assistance in understanding the issues in the case. The two experts had before them for the purposes of their conference and joint report, the joint expert report of the general practitioners Dr Mackey and Dr Pitt and the various individual expert reports and the clinical records of Dr Yaramati, Dr Schmidt and Wagga and Corowa Hospitals.

81. Both experts agreed on the balance of probabilities that the plaintiff does suffer from coeliac disease. However, the experts did not agree as to when the diagnosis of coeliac disease was first available. Dr Flecknoe-Brown was of the opinion in the report that the diagnosis was first available from January 2015 following the first pathology report of very low folate levels whereas Dr Vickers was of the opinion that the diagnosis was first available from September 2020 when the last set of biopsies were reported. Dr Vickers described the plaintiff’s case as “a very challenging case, even for a gastroenterologist” (paragraph 1.4). He was of the view that the diagnosis of coeliac disease could only be made in hindsight in the light of the histology, the plaintiff’s antibody response and his response to the gluten free diet in 2020. Dr Vickers described it as “a difficult statement to make” that the plaintiff probably does have coeliac disease.

82. Dr Flecknoe-Brown expressed the opinion that the plaintiff’s response to gluten exclusion was the most compelling aspect. He referred to the August 2020 biopsy in Wagga Base Hospital which he said did not show characteristic features of coeliac disease and he could see why Dr Vickers said that it was difficult to have been able to have made the diagnosis earlier because of, specifically, the problem with the negative biopsies in August 2020. However, Dr Flecknoe-Brown referred to other factors which lead to the diagnosis. He added that he did not know how easy it would have been to make the diagnosis in 2016-2017 but the low folate levels should have been investigated.

83. On balance, Dr Flecknoe-Brown was of the view that the diagnosis of coeliac disease would have been available following the 2015 low folate level results. Dr Vickers took a different view, and was of the opinion that there was not all the evidence until September 2020 when the plaintiff had the last set of biopsies and he went on a gluten-free diet. He said that if the general practitioner had sent the plaintiff to a gastroenterologist who had done small bowel biopsies as in August 2020, that the gastroenterologist would likely have got back two normal biopsy results with a confused presentation.

84. In relation to the likely cause of the plaintiff’s serum folate and B12 results in January and December 2015, Dr Flecknoe-Brown was of the opinion that the likely cause was attributable to coeliac disease whereas Dr Vickers was of the opinion that the likely cause was attributable to nutritional deficiency due to the plaintiff’s lifestyle. Dr Flecknoe-Brown said that the folate level was “strikingly abnormal”. Dr Vickers noted that while the B12 level was a little low and the folate levels could be consistent with severe coeliac disease, that should have been seen on a ileal biopsy whereas the colonoscopies in January 2017 and in April 2018 had included ileal biopsies which were reported as “absolutely normal”. He also referred to the fact that there was no evidence of severe coeliac disease in August 2020 on the biopsies taken.

85. Dr Vickers also relied on the red blood cells serum folate level which provided an indication of the folate level over the three months lifetime of the red cells. The red blood cell folate levels were normal or near normal on testing and an assumption of severe coeliac disease could not be made. On that basis, the plaintiff’s low serum folate levels were, in Dr Vickers’ view, probably nutritional due to the plaintiff being an old man living by himself with poor nutrition. Dr Flecknoe-Brown indicated that in his view serum folate levels were more important than red cell folate levels. The low serum folate levels on two occasions were dramatically low and should have been investigated including by a gastroenterological evaluation. A diagnosis of coeliac disease could have been made in 2015 in Dr Flecknoe-Brown’s opinion.

86. Both experts agreed that if the plaintiff was referred for coeliac serology testing following December 2015, that, on the balance of probabilities, the result would have been positive for coeliac antibodies. However, this result would have required interpretation. Dr Vickers said a lot of people have weak positive antibodies as they get older which was also normal. The plaintiff had had radiotherapy which can itself raise the level of antibodies. Dr Flecknoe-Brown said that targeted radiotherapy as the plaintiff had would probably not cause antibodies by itself. Dr Vickers said that in clinical practice he did see patients with radiation enteritis in men who have had targeted prostatic radiotherapy and also in women for cervical cancer and anal cancer.

87. The experts were asked to outline the steps required to be taken to obtain a reliable biopsy result for the investigation and diagnosis of coeliac disease. In essence, the experts agreed. Dr Vickers said that one had to do an endoscopy and a biopsy under the most reliable conditions which included not asking patients to stop eating gluten and to ensure that when the biopsies were taken the patient does not have any symptoms of gastroenteritis. The patient should be in a well state. Normally five biopsies would be taken by the gastroenterologist where there was a very strong suspicion of coeliac disease. However, a very careful endoscopic visual inspection of the duodenum may result in the gastroenterologist taking targeted biopsies of a concerning area. In August and September 2020, the plaintiff was extremely sick from urosepsis and therefore a good visual inspection of the duodenum was absolutely essential and, according to Dr Vickers, a targeted taking of a couple of biopsies was appropriate. Dr Vickers was of the view that two selected targeted biopsies in someone who was very sick would be reliable.

88. Dr Flecknoe-Brown indicated that he would like to have seen four biopsies and would certainly expect to see reports of biopsies from multiple parts of the duodenum and small bowel or as far down as the endoscopist can get.

89. Dr Flecknoe-Brown was of the view that the sampling of two biopsies for the histopathology report dated 13 August 2020 was not sufficient. In his view, the taking of only two samples for biopsy missed the spots where the coeliac would have been diagnosable. Dr Vickers was of the opinion that the sampling was sufficient and appears to have been targeted in the context of the plaintiff being acutely sick and unwell. Dr Vickers noted that the biopsies were taken by gastroenterologists at Wagga Base Hospital and assumed that they looked very carefully when they took the two biopsies. In his view, the two targeted biopsies were absolutely normal, and in particular the characteristic finding in the biopsies was that the villi were normal. At the time, the plaintiff had a highly systemic inflammatory response going because of his illness. Dr Vickers was of the view that there was a system inflammatory response with zero evidence of coeliac disease on the biopsy with the plaintiff being sick. Dr Flecknoe-Brown agreed that that was the indication of the biopsy and accepted that the biopsy report was inconclusive. However, he was of the view that the gastroenterologist in the light of what occurred with the plaintiff later, missed the spots where the coeliac disease would have been diagnosable.

90. Dr Vickers did not agree with this because the two biopsies were targeted.

91. Dr Flecknoe-Brown was of the view that the two biopsies were properly examined and the report on the biopsy samples was reliable. However, he was of the opinion that the first biopsies that were provided were insufficient. Dr Vickers stated that undertaking a biopsy involved taking sufficient samples at the most opportune time to get an accurate diagnosis. In the first biopsies of 13 August 2020, there was evidence of an acute duodenitis. The plaintiff remained unwell and on 4 September 2020 there were five biopsies showing reduced villi and raised lymphocytes. In his view, that was consistent with an unresolved acute duodenitis progressing into chronic duodenitis. The second biopsy should have been taken several weeks after the patient was well to be reliable. Accordingly, the 4 September 2020 biopsies could be “easily interpreted” as the manifestation of an acute duodenitis. Dr Vickers, in particular, was of the opinion that one could not go from two normal biopsies in August to five abnormal biopsies three weeks later in September 2020 if the plaintiff had severe coeliac disease (paragraph 8.6).

92. In relation to the biopsies performed on 4 September 2020 at Wagga Base Hospital, Dr Flecknoe-Brown was of the view that the biopsy results gave a “pretty good description of coeliac disease on the biopsy” and confirmed that the first two biopsies were thus inadequate (paragraph 9.2). Dr Vickers referred to the fact the second biopsies were only three weeks after the first biopsies and this was inconsistent with severe coeliac disease, having regard to the plaintiff having gone from two normal biopsies to five abnormal biopsies in three weeks. The results were consistent with acute duodenitis (paragraph 9.4). However, he accepted that the five biopsies could not exclude coeliac disease although no diagnosis could be given on the results on 4 September 2020 in the context (paragraphs 9.5-9.6). Dr Vickers also was of the view that if coeliac disease was a possibility on the second occasion according to the Wagga Base Hospital, medical practitioners would likely have ordered antibody levels for gluten which they did not. This indicated that the gastroenterologist at Wagga Base Hospital was not convinced about coeliac disease (paragraph 9.8). Dr Flecknoe-Brown noted that coeliac antibodies testing was awaited.

93. Dr Flecknoe-Brown was of the view that the plaintiff had active coeliac disease from as early as 2015 when there were the “grossly abnormal” folate level test results. For five years, the plaintiff was malnourished and was progressively losing a substantial amount of weight. In cross-examination, Dr Flecknoe-Brown altered his opinions having regard to altered assumptions about the plaintiff’s weight levels put to him by counsel for the defendant.

94. Dr Vickers was of the opinion that coeliac disease can have a “very long spectrum”. He was of the view that a delay in diagnosis would have contributed to a small proportion of the plaintiff’s metabolic bone disease but the major proportion would have been the drugs used for prostate cancer. Dr Vickers accepted that coeliac disease may have contributed to some of the plaintiff’s weight loss but there could have been other medical and social reasons. Dr Vickers was of the opinion that the best evidence was that the plaintiff actually developed manifestations of coeliac disease in hindsight after the second set of biopsies in September 2020. Dr Flecknoe-Brown referred to the recurrent episodes of diarrhoea with strikingly low folate levels leading, in his view, with an iron deficiency to a diagnosis of coeliac disease active in 2015.

95. In relation to the plaintiff’s increased risks as a result of the delayed diagnosis of coeliac disease, Dr Flecknoe-Brown was of the view that the plaintiff had a definite lifelong risk of continuing fragile bones. The androgen deprivation therapy which the plaintiff had following his radiation was dealt with by Prolia injections. Autonomic dysfunction also developed while the plaintiff had undiagnosed coeliac disease. He noted the plaintiff’s falls in this period and was of the view that they were linked to the coeliac disease which he confirmed in cross-examination. He also noted an increased risk of lymphoma which was small.

96. Dr Vickers accepted that a delayed diagnosis of coeliac disease could lead to ongoing metabolic bone disease and risk of fracture, but he was of the view that the dominant contributor would have been the plaintiff’s androgen deprivation therapy and that coeliac disease was only a minor component. He was also doubtful about Dr Flecknoe-Brown’s opinion about the autonomic disease. Dr Flecknoe-Brown was of the view that the radiation therapy was, contrary to Dr Vickers, only a minor factor.

97. Both experts agreed that the plaintiff needed ongoing treatment to stabilise his metabolic bone disease with surveillance in relation to the possibility of lymphoma (paragraphs 12.1 and 12.6).

98. More detailed questions were asked by the defendant in relation to the August and September 2020 biopsies. Both experts were of the view that the 13 August 2020 histopathology report following the August 2020 biopsies was not consistent with a diagnosis of coeliac disease. Dr Vickers said that in order to make a diagnosis of coeliac disease on histology, a blunting or atrophy of the villi was required which was not present. Other matters were also not present. He accepted that the report on 13 August 2020 was inconsistent with coeliac disease. Both experts were of the view that the report dated 9 September 2020 was consistent with the diagnosis of coeliac disease, but the answers were qualified. Dr Vickers said the report was consistent with coeliac disease but equally the findings were consistent with an acute duodenitis in a resolving form (paragraphs 2.1-2.2). Dr Flecknoe-Brown was of the view that the report fairly strongly indicated coeliac disease. Duodenitis was only mentioned as a possibility. He found the report compellingly in favour of coeliac disease.

78. In relation to the change in findings between August 2020 and September 2020, Dr Vickers was of the view that the findings are typically what one would see with acute toxic enteritis being an acute toxic inflammation of the duodenum. That would be consistent with a change over only a few weeks. Dr Flecknoe-Brown was of the view that the difference showed that the samples provided in the August 2020 biopsy were inadequate for diagnosis but the later samples were more thorough (paragraph 3.2).

79. In relation to latent coeliac disease, Dr Vickers said this was where a patient had the genetic susceptibility to coeliac disease. That person had symptoms which were usually non-specific. In his view, the histopathology in the August 2020 biopsies did not confirm latent coeliac disease. In hindsight, Dr Vickers was of the view that the plaintiff probably had latent coeliac disease from birth. Dr Flecknoe-Brown in summary agreed with Dr Vickers’ views.

80. In relation to the likely trigger for the plaintiff’s latent coeliac disease, Dr Vickers pointed to something occurring just prior to August 2020 which made the plaintiff come to hospital. He referred to various possibilities including environmental factors or viral gastroenterology. Another possibility was a general response to severe chronic inflammation. Dr Flecknoe-Brown says there are a range of possibilities which have not been properly explored in the science. In his view, it was probably triggered before 2015 at some time but not for a long time prior to that (paragraph 5.5).

81. In relation to a diagnosis of coeliac disease, Dr Flecknoe-Brown was of the view that a diagnosis could have been made by a gastroenterologist in 2016. Dr Vickers was of the view that a presumptive diagnosis could have been made by a gastroenterologist in September or December 2020. Dr Vickers points to the normal biopsies obtained in August 2020 and was of the view that biopsies taken at any other earlier time would have been normal. The biopsies in September 2020 and the antibodies thereafter were sufficient to make a highly presumptive diagnosis of coeliac disease. However, he accepted that if negative biopsies were obtained in 2015 that a gastroenterologist would possibly have suggested measuring antibody levels.

82. Dr Flecknoe-Brown was of the view that the patient would only be referred to a gastroenterologist when antibodies were reported as being abnormal. The plaintiff’s weight loss was also relevant. Dr Vickers was of the view that the dominant cause for weight loss was chronic infection through the severe chronic urosepsis which the plaintiff had in 2020. Dr Flecknoe-Brown again referred to the low folate levels reported in January and December 2015.

Medical records and consultation notes

104. There were voluminous medical records consisting of thousands of pages tendered in the matter. I have already given a summary outline of the background facts where I refer to some of the plaintiff’s more significant consultations with Dr Yaramati and various specialists.

105. It is unnecessary to set out in great detail the voluminous medical records in evidence. It would also be unhelpful for the purpose of determination of the central issues. However, some reference to the more significant medical records is required.

106. It appears that the plaintiff completed a new patient information form at the Urana Medical Centre where Dr Yaramati had his consultation rooms on 19 January 2015. The plaintiff’s weight was recorded by him as 56kg in the form. He is recorded as having no current medications (DTB 2/132-135).

107. The following summary sets out some of the more significant medical notes and records relating to consultations and reports:

1. Dr Yaramati - 23 January 2015: the plaintiff is recorded as a new patient complaining of dysuria, an increased frequency of urination and symptoms of difficulty in emptying his bladder. The plaintiff is recorded as indicating no abdominal pain with his abdomen being soft with nil abnormality detected (“NAD”). The diagnosis was a urinary tract infection for which tablets were prescribed. A urine sample was sent to pathology for testing (DTB 2/136-137).

2. Dr Yaramati - 30 January 2015: the plaintiff came in for review and stated that his dysuria symptoms had resolved but he had persistent problems with urine stream and incomplete emptying of the bladder. Numerous blood samples were taken for testing (DTB 2/138).

3. Upon testing of the samples taken on 30 January 2015, the pathologist reported as follows:

“Active B12 = L32 pmol/L (>35)

…

Vitamin B12 and Folate

Vitamin B12 = 199 pmol/L (135 –650)

Serum Folate = L 1.9nmol/L (>7.0)

Red Cell Folate = 258 nmol/L (>150)

Comment on Lab ID 255880465

…

Suggest specimen re-collection to confirm low serum folate level for patients at risk of folate deficiency with conditions such as macrocytic anaemia, malabsorption or coeliac disease. If serum folate levels are persistently low, then red cell folate may be indicated.” (DTB 2/291-295).

4. Dr Yaramati - 6 February 2015: the plaintiff attended for review. It is recorded in the notes by Dr Yaramati that the plaintiff had ongoing symptoms of urinary outflow obstruction and elevated PSA levels. Dr Yaramati arranged an ultrasound and collected a urine sample and provided a referral to Dr Lewin, urologist (DTB 2/139).

5. Dr Yaramati - 10 February 2015: the plaintiff is recorded as indicating no change in his symptoms. It was noted that the patient had a follow-up appointment with Dr Lewin, urologist, on 11 March 2015. Various tablets were prescribed (DTB 2/140).

6. Dr Yaramati - The plaintiff saw Dr Yaramati on various occasions in February and March 2015 in relation to his urinary problems.

7. Dr Lewin and Dr Yaramati - 11 March 2015 and 24 March 2015 – Dr Jonathan Lewin reviews the plaintiff in relation to his urinary issues. Dr Lewin reported to Dr Yaramati on 24 March 2015 that the plaintiff’s prostate felt grossly abnormal and that he “certainly has high-grade metastatic prostate cancer” (DTB 2/564).

8. Dr Yaramati - 27 April 2015: the plaintiff is recorded as referring to his urinary tract infection and urinary symptoms. The plaintiff is reported to have a soft abdomen with no abnormality detected. (DTB 2/145).

9. Dr Yaramati: the plaintiff saw Dr Yaramati on various dates in May and June 2015. On 19 May 2015, he is recorded as feeling well with his urine symptoms resolved (DTB 2/148). However, later symptoms were recorded for urinary problems at a consultation on 11 June 2015 (DTB 2/149). On 18 June 2015, the plaintiff was recorded as feeling well (DTB 2/150).

10. Dr Lewin - 18 June 2015: letter from Dr Lewin to Dr Yaramati in which Dr Lewin indicated that he had recommended pelvic radiation with some targeted radiation to the plaintiff’s sacrum and prostate. Dr Lewin referred the plaintiff to Dr Ong, oncologist (DTB 2/568).

11. Dr E Ong - 29 June 2015: letter to Dr Lewin copied to Dr Yaramati. Dr Ong refers to his history, examination and proposed treatment of the plaintiff. The plaintiff is recorded as having a normal bowel function with no per rectal bleeding. Examination revealed a markedly enlarged prostate (DTB 2/570). Stage IV prostate cancer was diagnosed.

12. Dr Yaramati - 1 December 2015: the plaintiff is recorded as finishing his radiation therapy with a follow-up with Dr Ong in February 2016. Increased frequency of urination was noted. The abdomen was recorded as soft with no abnormality detected. On 18 December 2015 in a consultation, Dr Yaramati has recorded the plaintiff as stating that he was feeling well (DTB 2/152).

13. On 17 December 2015 Dr Yaramati took blood samples and requested pathology. The pathologist reported as follows:

“Active B12 = L 32 pmol/L (>35)

…

Vitamin B12 and Folate

S.Fol… L 3.5nmol/L (>7.0)

RBC Fol… 215nmol/L (>150)

Comments on Collection 17/12/15…

Suggest specimen re-collection to confirm low serum folate level for patients at risk of folate deficiency with condition such as macrocytic anaemia, malabsorption or coeliac disease. If serum folate levels are persistently low, then red cell folate may be indicated.

In some patients megaloblastic change may occur with low normal levels of RBC Folate. Suggest follow up according to clinical context… Serum folate will be performed as an initial test with red cell folate performed additionally, if required, when the initial serum folate is low.” (DTB 2/337, 338).

14. On 24 December 2015 Dr Yaramati records discussing the blood results with the plaintiff and recommending a B12 injection every three months with folate supplements (DTB 2/154). This was for the low B12 and low serum folate reported.

15. Dr Yaramati - 31 December 2015: a B12 injection was administered.

16. Dr Yaramati - 2 February 2016: the plaintiff is recorded as gaining minimal weight but was otherwise well. His body weight was recorded as being measured at 62kg (DTB 2/157).

17. Dr Ong - 16 February 2016 letter from Dr Ong to Dr Lewin copied to Dr Yaramati. Dr Ong refers to the plaintiff completing his radiotherapy and states that the plaintiff has “slightly erratic bowel function using his bowel one-four times” (DTB 2/574).

18. Dr Yaramati - 22 March 2016: the plaintiff is recorded as stating that overall he was going well. He had his B12 injection and his cancer drug injection (Triptorelin) (DTB 2/158).

19. Dr Yaramati - 22 June 2016: the plaintiff is recorded as coming in for review and stated that overall he was going well. He had his cancer drug injection and a B12 injection (DTB 2/160).

20. Dr Yaramati - 24 June 2016: blood samples were taken for pathology. These were reported as being normal for B12 and folate on 28 June 2016 by Dr Yaramati (DTB 2/162).

21. Dr Yaramati - 12 July 2016: the plaintiff is reported as having diarrhoea for the last two days after working with a pump in dirty water (the plaintiff denied saying this but had no recollection of the consultation. I accept that he said this or something like it to Dr Yaramati who appeared to be overall a careful note taker). There were a number of episodes of runny diarrhoea with no abdominal pain with the abdomen being soft with no tenderness. Gastrolite sachets were recommended to the plaintiff (DTB 2/163).

22. Dr Yaramati - 20 September 2016: the notes record the plaintiff coming in for his regular Triptorelin injection and that he had weight gain. An increasing shortness of breath over a period of two months was noted, as was hypertension. An examination of the plaintiff’s abdomen showed that it was soft with no abnormality detected. The plaintiff was commenced on Coversyl. An x-ray of the plaintiff’s chest noted no abnormalities (DTB 2/164).

23. Dr Yaramati - 18 October 2016: it is recorded that the plaintiff was well and asymptomatic. Blood samples were collected (DTB 2/165).

24. Drs Ong/Schmidt - 21 November 2016: Dr Ong referred the plaintiff to Dr Schmidt due to painless per rectal bleeding following his cancer radiation treatment. The plaintiff is recorded as denying any weight loss or significant change in bowel habit. On examination the plaintiff was recorded as being of normal weight with a soft and non-tender abdomen. A colonoscopy was arranged (DTB 2/575).

25. Dr Yaramati - 24 November 2016: it is recorded that the plaintiff was overall feeling well with a weight of 67.9kg and with no abnormality detected in his abdomen. The impression was recorded of weight gain due to hormone therapy (DTB 2/166).

26. Dr Yaramati - December 2016 consultations: the plaintiff saw Dr Yaramati on a number of occasions in December 2016. On 21 December 2016 blood samples were taken for pathology with the plaintiff having Triptorelin and B12 injections (DTB 2/169). At a consultation on 28 December 2016 the plaintiff’s blood results were recorded as being discussed with him with his B12 and folate levels being normal. He was advised to continue the same medications and come in for a regular monthly check-up (DTB 2/170).

27. Dr Yaramati - 13 January 2017: Dr Yaramati is recorded as sending a letter to Dr Lewin, the urologist, to update him on an episode of haematuria given the plaintiff’s cancer history (DTB 2/172).

28. Dr Schmidt - 18 January 2017: the plaintiff had a colonoscopy with mild patchy rectal inflammation noted (PTB page 625).

29. Drs Yaramati, Lewin and Ong – January-February 2017: there was correspondence between the various doctors. A letter to Dr Lewin from Dr Ong dated 13 February 2017 noted occasional haematuria in the plaintiff but with no major bleeding and with the plaintiff using his bowels once to twice a day “usually loose”. It was also noted that the plaintiff was coping with “the hormonal manipulation” with supplements to prevent osteoporosis: DTB 2/578.

30. Dr Yaramati - 20 March 2017: it is recorded that the plaintiff had a cystoscopy and a colonoscopy with findings of radiation cystitis and proctitis but with no further haematuria. B12 and Triptorelin injections were given (DTB 2/174).

31. Dr Yaramati - 15 May 2017: the plaintiff reported pins and needles sensations in his hands with a recent weight gain of 20kg. The impression of Dr Yaramati was carpal tunnel syndrome and the plaintiff was referred to Dr Hatfield, orthopaedic surgeon, for management. He was also recorded as being advised about weight reduction (DTB 2/176).

32. 22 May 2017 – Drs Ong and Lewin copied to Dr Yaramati: Dr Ong sent a letter to Dr Lewin indicating that the plaintiff was clinically well but with occasional per rectum bleeding from his bowel. The plaintiff is recorded as informing Dr Ong that his bowel has been loose lately with use of up to three times per day. As to the hormonal therapy, the plaintiff reported truncal weight gain of 22kg with the plaintiff using vitamin D and calcium supplements to prevent osteoporosis. Dr Ong expressed the view that the plaintiff needed a break from his hormonal manipulation (DTB 2/580). Soon thereafter, the plaintiff was reviewed by Dr Hatfield, orthopaedic surgeon, who recommended carpal tunnel syndrome surgery.

33. Dr Yaramati – June/July 2017: the plaintiff was seen by Dr Yaramati on a number of occasions in June/July 2017. On 28 June 2017 blood specimens were taken for testing. The 5 July 2017 notes record that the blood tests were normal with the plaintiff complaining of per rectum bleeding without pain with radiation induced proctitis. Haemorrhoids were noted and there was a B12 injection (DTB 2/178). The consultation notes for 28 July 2017 record the plaintiff as weighing 72kg.

34. Dr Yaramati - 16 August 2017: the plaintiff recorded problems with urinary flow but with a soft abdomen. Advice was given to see Dr Lewin (DTB 2/178). The plaintiff also saw Dr Yaramati on various occasions in September 2017 and October 2017;

35. Dr Yaramati - 11 October 2017: the notes record the plaintiff complaining of diarrhoea for the last three weeks of an intermittent nature with no constipation. The plaintiff was advised to take Gastro-Stop tablets for two weeks. The doctor collected a stool sample for testing (DTB 2/187). The stool testing indicated no infections.

36. Dr Yaramati - 18 October 2017: the plaintiff is recorded as indicating that his diarrhoea resolved with Gastro-Stop after three days and that he was now well and his bowels had settled (DTB 2/188). Lower urinary tract symptoms resulted in a referral to Dr Lewin.

37. Dr Yaramati - 24 November 2017: it is recorded in the notes that the plaintiff came in for his regular prescriptions and no acute concerns were voiced (DTB 2/190).

38. Dr Yaramati - 11 January 2018: the plaintiff is recorded as attending for his B12 injection in the left arm (DTB 2/191);

39. Dr Ong to Dr Yaramati copied to Dr Lewin - 12 February 2018: Dr Ong indicated in a letter that he had reviewed Mr Curran on 12 February 2018 and the plaintiff was well with his energy back to normal since he stopped his androgen deprivation therapy. In terms of the plaintiff’s bowel function, Dr Ong recorded him using his bowel once to twice a day with a soft stool and no further diarrhoea but had intermittent mild per rectum bleeding. The plaintiff is recorded as having reasonably good urinary function and having a weight of 65kg with a normal weight of 52kg to 54kg. Dr Ong referred him back to Dr Schmidt for consideration of a repeat colonoscopy (DTB 2/587).

40. The plaintiff saw Dr Yaramati on various occasions in February 2018.

41. On 13 March 2018 the plaintiff saw Dr Schmidt. Dr Schmidt forwarded a letter to Dr Ong, copied to Dr Yaramati, in relation to the review. The history is recorded as Mr Curran complaining of intermittent per rectal bleeding associated with diarrhoea with blood in the urine especially in the morning. The plaintiff’s weight was indicated as being stable at 60kg with the plaintiff appearing thin but with his abdomen being soft and non-tender. Dr Schmidt indicated that she planned to do a colonoscopy (DTB 2/589).

42. Dr Yaramati - 16 March 2018: the consultation notes indicate that the plaintiff came in for regular prescriptions and no acute concerns were voiced (DTB 2/195).

43. 28 March 2018: the plaintiff underwent a colonoscopy with Dr Schmidt with a colonic polyp detected and snared. Mild proctitis was also noted (PTB/2 page 622).

44. Dr Yaramati - 13 April 2018: the plaintiff is recorded as coming in for regular check-up and prescriptions with no acute concerns and overall feeling well. The abdomen is recorded as having nil abnormality detected with the impression to Dr Yaramati being that the patient was stable (DTB 2/196).

45. Dr Yaramati - 17 April 2018: the notes record a chronic disease management plan being prepared with the plaintiff’s consent. A further consultation was recorded later in the day with the examination noting a weight of 65.4kg (DTB 2/197-8).

46. Dr Yaramati - April-July 2018: there were various consultations with the plaintiff having blood tests and a B12 injection with no concerns identified (DTB 2/199-205).

47. Dr Yaramati - 31 August 2018: the notes record the plaintiff complaining of “episodic diarrhoea stool 3 to 4 day and stopping for 4 to 5 days, recurring regularly” with no abdominal pain. The plaintiff’s abdomen was recorded as being soft with nil abnormality detected. Metamucil was recommended with a review in two weeks’ time (DTB 2/206).

48. Dr Yaramati - 7 September 2018: one week after the previous consultation, the plaintiff attended for what was recorded as his regular check-up and to obtain prescriptions. The notes state “no acute concerns for patient … Overall feeling well”. The abdomen was reported as having nil abnormality detected with the impression being that the plaintiff was stable. There is no record of diarrhoea (DTB 2/207).

49. Dr Yaramati - 10 October 2018: on examination the plaintiff is recorded as weighing 62.4kg with a request for a bone density scan due to the plaintiff being at risk of osteoporosis (DTB 2/208).

50. Dr Schmidt - 29 October 2018: the plaintiff had a follow-up colonoscopy. Minor internal haemorrhoids were noted but with no recurrent polyps (DTB 2/595).

51. Dr Yaramati - 31 October 2018: the plaintiff’s weight was recorded as 63.5kg (DTB 2/210).

52. Mr Gallo, dietician - 7 November 2018: the plaintiff was recorded as having regular bowels with no other issues reported (DTB 2/211).

53. Dr Yaramati - 23 November 2018: the test results indicated that the plaintiff had osteoporosis and he was commenced on calcium and vitamin D tablets with six monthly Prolia injections (DTB 2/210).

54. Dr Yaramati - 21 December 2018: the plaintiff is recorded as coming in for regular check-up and prescriptions and expressing no acute concerns and overall feeling well. On examination the abdomen had nil abnormality detected and the impression was stable.

55. Wagga Base Hospital - 4 January 2019 to 6 January 2019: the plaintiff was admitted to hospital with a history of right-sided flank pain and episodes of runny stool and vomiting. The plaintiff underwent a cystoscopy and ureteric stent and was prescribed antibiotics. His weight was indicated as 65kg (DTB 3/737). The principal diagnosis was obstructing renal calculi, see also consultation notes (DTB 2/214). There was a further admission on 22 January 2019 with right-sided lower abdominal pain radiating to the groin. A urinary tract infection was detected. The plaintiff was referred to Professor Mackenzie, physician, following breathlessness and deranged liver function tests with urinary calculus (DTB 3/865). The plaintiff was also reported as having hyperkalaemia (high potassium). On 29 January 2019, the plaintiff visited Dr Yaramati and referred to his hospital admission (DTB 2/215). It is noted that Gastro-Stop capsules were ceased on 30 January 2019. In a consultation, Dr Yaramati collected blood for an electrolyte check. A copy was ordered to Professor Mackenzie. At a consultation on 31 January 2019, Dr Yaramati discussed the blood results and advised the plaintiff as recorded to take Vitamin D tablets daily (DTB 2/217). In a lengthy follow-up consultation in relation to the plaintiff feeling low for many years on 5 February 2019, it is recorded that the plaintiff had no weight gain or weight loss (DTB 2/218). On 6 February 2019, blood samples were collected by Dr Yaramati for follow-up with Dr Mackenzie (DTB 2/221). Professor Mackenzie saw the plaintiff on 15 March 2019 to follow-up on his liver function test abnormalities with an ultrasound showing fatty liver but no other abnormality (DTB 2/602).

491. As there is no evidence to the contrary, I find that Dr Yaramati did not obtain the September 2020 biopsy results until a year later, well after Dr Chan had diagnosed coeliac disease in the plaintiff.

September-December 2020

501. As stated above, there is no evidence that the biopsy results of the specimens taken during the colonoscopy performed during the plaintiff’s admission to Wagga Base Hospital on 4 September 2020 were received by the defendant prior to 24 November 2021, more than 12 months after the plaintiff’s last consultation with Dr Yaramati. The colonoscopy comments indicated that the histology result was awaited to see “if there was any evidence of coeliac disease and/or small bowel lymphoma”.

502. Dr Vickers expressed the opinion that the colonoscopy occurred too soon after the August 2020 colonoscopy and one could not assume the plaintiff’s duodenitis had had sufficient time to resolve itself in the period between the two procedures. Dr Flecknoe-Brown takes a different view as referred to above.

503. An examination of the consultation notes of Dr Yaramati is instructive in this period. The plaintiff had little recollection of this period. The plaintiff argues that the August and September admissions and Dr Yaramati’s receipt of the colonoscopy comments on 17 September 2020, clearly indicated the necessity for coeliac disease testing to be ordered by Dr Yaramati. The defendant submits it was reasonable to await the results, to have consultations with Mr Curran and, if thought desirable, to refer Mr Curran to Dr Schmidt for further opinion.

504. The August 2020 admission to Wagga Base Hospital occurred following a reported fall. While the gastroenterologist was concerned in relation to the possibility of coeliac disease, the two biopsies taken reported no abnormality in the small bowel.

505. Dr Yaramati was informed by the hospital that Mr Curran had discharged himself against medical advice and had been managed for various conditions including urinary retention and electrolyte abnormality. In the absence of any recollection of the plaintiff and in the light of Dr Yaramati’s notes, there does not appear to be any reason to doubt Dr Yaramati’s oral evidence that he had not been told by Mr Curran that he was having chronic diarrhoea for 12 months. Dr Yaramati’s note for 17 August 2020 included “needs another trial and follow-up with urologist” (DTB 2/259). Dr Yaramati did not see the plaintiff again until 15 September 2020, after Mr Curran’s discharge from Wagga Base Hospital for the second time. Dr Yaramati noted various issues, including treatment received in hospital. Blood samples were collected for electrolytes and iron level checks (DTB 2/260). Further notes for that day indicate that there was an examination and Mr Curran’s medications were updated in the light of the discharge summary. An ultrasound of the abdomen was recommended (DTB 2/261) which returned a normal result (DTB 2/558).

506. In October 2020, consultation notes record Mr Curran seeing Dr Yaramati five times. The consultation on 21 October 2020 records Mr Curran being told by Dr Yaramati that the blood test results showed that his “electrolytes [were] improving”. Medication was partially altered. At the second last consultation on 22 October 2020 there appears to have been a general examination with the plaintiff’s weight noted as 51.1kg, slightly under his base weight. (See also the history of weights at DTB 2/274-5 and 278.)

507. Hospital notes from the August and September 2020 admissions include a review by a dietician who noted weight loss during the August admission (DTB 2/548) with the plaintiff “disliking” the hospital food and mostly only having a piece of fruit to eat (DTB 2/549). This is relevant to potentially explaining the plaintiff’s weight loss at this time. The dietician believed there was malnutrition involved (DTB 2/550).

508. Dr Yaramati prepared a chronic disease management plan (DTB 2/267). The plaintiff’s serum folate levels had been increasing from 2018-19 from their low levels in 2015 but had reduced in the tests on 25 May 2020 but with strong red blood cell folate levels (DTB 2/272). The last consultation on 27 October 2020 did not indicate any issues (DTB 2/277).

509. Having considered the relevant material referred to above and the expert evidence, in my view Dr Yaramati was reasonably entitled to await any results from the biopsy tests and then refer Mr Curran to Dr Schmidt or a specialist gastroenterologist for review. There was no expert evidence suggesting Dr Yaramati seeking gastroenterological opinion before placing a person on a gluten-free diet was unreasonable or contrary to reasonable general practitioner practice at the time. There was also no evidence of when a specialist gastroenterologist consultation was available for the plaintiff.

Overall conclusions from the above findings

510. It is necessary to take into account all of the findings which I have set out above as well as the remaining evidence to determine my overall findings in relation to the management and treatment by Dr Yaramati of the plaintiff and his recommendations and advice to the plaintiff in the 2015-October 2020 period.

511. In doing so, I take into account the plaintiff’s submissions about the “evolving nature of the plaintiff’s complaints”: written submissions paragraph 25. See also paragraph 32.

512. As set out above, I do not consider the January and December 2015 test results required different and further steps to be taken by Dr Yaramati. The plaintiff’s weight did not involve unexplained and significant variation. The plaintiff’s diarrhoea symptoms were varied and intermittent and episodic until 2018-9. Then, Dr Yaramati referred the plaintiff to specialists for review. The intermittent and episodic diarrhoea symptoms were in my view reasonably explained by radiation proctitis and generally responded to basic treatment from time to time. The osteoporosis and anaemia similarly had a reasonably open explanation. No specialist raised the possibility of coeliac disease until during the 2020 hospital admissions. The plaintiff is frequently recorded as appearing well in Dr Yaramati’s notes and in specialist reports. The notes generally reveal careful review by Dr Yaramati of the plaintiff. My opinion is not changed by considering the factors noted as a whole and considered cumulatively, including in the light of the plaintiff’s entire history as known to Dr Yaramati. The physician Professor Mackenzie did not recommend coeliac testing in any of her reports. On the whole of the evidence and in light of my findings set out above, Dr Yaramati did not act unreasonably in not ordering coeliac serology testing, including following the August 2020 colonoscopy biopsy report, in the period 2015-October 2020. He acted generally in accordance with the specialist opinions provided to him. Generally, I prefer the opinions of the defendant’s medico-legal experts on the central issues in dispute for the reasons which I have given.

The Defence under section 5O of the CLA

513. As set out above, the defendant has pleaded in his Defence s 5O of the CLA. The defendant pleads that in the provision of professional services to the plaintiff as a general practitioner, he acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice. Reference is made to the reports of Dr Pitt and Dr Vickers. I place particular reliance on the report and opinions of Dr Pitt as he is a general practitioner medicolegal expert. The defendant submits that the Court should accept the opinion of Dr Pitt in relation to the s 5O issue.

514. I have set out above a summary of Dr Pitt’s reports. There was a challenge made to this aspect of Dr Pitt’s report by the plaintiff which was the subject of a voir dire.

515. I have set out above in some detail a consideration of Dr Pitt’s primary report. I summarise the points made as follows:

1. In an executive summary, Dr Pitt expresses the opinion that Dr Yaramati’s performance was consistent with reasonable and competent professional practice widely accepted by peer professional opinion;

2. Dr Pitt provides a description of modern Australian general practice including the role and process undertaken by general practitioners in consultations and in providing care to patients;

3. Dr Pitt was asked questions in relation to Dr Yaramati’s care and management of the plaintiff, including whether it was consistent with competent professional practice on the one hand and whether the care and treatment of the plaintiff was reasonable in the circumstances on the other hand;

4. Despite there being a distinction made between competent professional practice on the one hand and reasonable care and treatment on the other hand, the format of Dr Pitt’s opinions was set out in a fashion which did not on its face clearly appear to make the distinction. See paragraph 62 of his April 2022 report;

5. In answering questions on the voir dire, Dr Pitt stated that he did not see the difference as an expert medical witness between competent professional practice and reasonable care: T479.20-.28.

516. The consultations, treatment and advice given by Dr Yaramati to the plaintiff extended over nearly six years. There were dozens of consultations in this period. It is unclear, to say the least, how s 5O of the CLA can apply in these circumstances. Neither party was able to direct the Court to any authority in relation to s5O in a similar context. Dr Pitt sought to arrive at a general conclusion in relation to services extending over that nearly six year period. I accept that s 5O does not require proof of a specific pre-existing practice and that it is enough if, in the same circumstances, a substantial body of peer professional opinion would have considered the manner in which the medical practitioner acted to be competent professional practice, consistently with the appellate authorities I have set out. However, as noted by Basten JA at paragraph 28 of Sparks v Hobson, above, a general declaration may be of limited value in many circumstances. That comment appears, with respect, to have some force.

517. In my view, in the light of Dr Pitt’s evidence, the defence under s 5O has not been established by the defendant. First, the summary conclusion set out by Dr Pitt was sought to be applied over a wide range of treatment and advice given by the defendant. It was, in my opinion, too general a conclusion to be persuasive: see the comments of Basten JA in Sparks v Hobson, above at [28]. It is difficult to see how an opinion could be given that the manner of acting was “widely accepted.” Secondly, consultations and advice occurred over nearly a six-year period. It is difficult to see how a summary conclusion can usefully be applied to such a lengthy series of consultations as opposed to a more modest and directed (and specifically considered) number of professional consultations or provisions of treatment. Thirdly, I was not satisfied that Dr Pitt in the end understood the difference between the provision of reasonable care and the standard under s 5O. Fourthly, there is a question in my mind of the applicability of s 5O over such a wide range and lengthy period of professional provision of advice and treatment. Further, although Dr Pitt’s report was lengthy, not all relevant consultations were considered in detail in his report, and it seems difficult how such a wide conclusion could be drawn in those circumstances. In the end, I am not satisfied that the defendant has satisfied the onus of establishing the elements of s 5O in relation to the manner of acting of Dr Yaramati. I reject the defendant’s submissions on this issue.

518. If I am wrong in this conclusion, then in my view the defence would be made out by the defendant. I do not consider that the expert opinions set out by Dr Pitt were irrational. Although that matter was put in cross-examination to Dr Pitt, a detailed basis for the suggestion was not put or set out. In my view, there was nothing in the report or responses of Dr Pitt that would appear to be irrational thus attracting the application of s 5O(2) of the CLA. No submission was made by the plaintiff in final submissions that Dr Pitt’s view was irrational under s 5O.

519. For these reasons, in my view s 5O has not been established by the defendant.

Duty and breach of duty

520. Dr Yaramati acted on many occasions as the general practitioner to the plaintiff in consultations. In doing so, he provided advice and treatment to the plaintiff. It is clear that a duty was owed by Dr Yaramati as a medical practitioner in these circumstances to exercise reasonable care and skill in the provision of professional advice and treatment to the plaintiff as his patient: Rogers v Whitaker (1992) 175 CLR 479 at 483.

521. The question arises whether Dr Yaramati breached that duty of care owed by him to the plaintiff. The question to be considered, with the onus being on the plaintiff, is whether the defendant failed to provide the professional service or services in question in accordance with the standard of the ordinary skilled person practising the relevant profession being in this case a medical general practitioner. As was made clear by the High Court in Rogers v Whitaker (at 489), in making the assessment as to whether the duty of care owed by a medical practitioner was complied with, responsible professional opinion will have an influential and often a decisive role to play.

522. I take into account in considering this issue also ss 5B and 5C of the CLA. I also note the comments of Justice Leeming in Venues New South Wales v Kane [2023] NSWCA 192 in relation to the proper approach to be taken to ss 5B and 5C of the CLA. In my view, the risk of harm in the present case was the risk that the plaintiff would suffer from the effects of untreated coeliac disease and undertake unnecessary treatment or procedures if advice was not given to undertake appropriate testing for coeliac disease. This is similar to the written submissions of the plaintiff.

523. In relation to s 5B(2) of the CLA, in my view it was unlikely on the evidence that harm would occur if Dr Yaramati did not recommend coeliac disease serology testing. For the reasons which I have set out above, I do not consider that Dr Yaramati acted unreasonably in taking the approach which he did. I accept that there was a degree of seriousness in the condition if it was untreated and the burden of taking precautions (in recommending appropriate testing) was minor. However, in my view the risk to the plaintiff in the circumstances and on the history he gave in the context of his age, was not reasonably foreseeable and amounted to an insignificant risk. I reject the plaintiff’s submission to the contrary.

524. Having regard to my factual findings set out above, in my view a reasonable general practitioner in the position of Dr Yaramati and having regard to the history of the plaintiff, would not have recommended coeliac serology testing in the period from 2015 to October 2020 whilst the plaintiff was under Dr Yaramati’s care. Similarly, I do not consider Dr Yaramati should reasonably have referred the plaintiff to a gastroenterologist for the purposes of considering possible coeliac disease. I rely on my detailed analysis and factual findings above.

525. In my view, Dr Yaramati provided professional services to the plaintiff in accordance with the standard of the ordinary skilled person practising the profession of a general medical practitioner at the relevant time. In my view, reasonable care and skill in the provision of professional advice and treatment was given, and taken by, Dr Yaramati at all relevant times. In arriving at those conclusions, I take into account my factual findings set out above in the light of the opinions of Drs Pitt and Vickers which in general terms I have preferred on the liability issue and in the light of the oral evidence of Dr Yaramati and the documentary evidence to which I have referred.

526. For the above reasons, in my view there was no breach of duty of care by Dr Yaramati in the present case.

Causation

527. I have held that there was no breach of the duty of care owed to the plaintiff by Dr Yaramati. If I am wrong in that conclusion, the question arises whether the plaintiff has established causation. The relevant principles are set out above and, in general terms, a “but for” test of causation must be applied.

528. I have found that there was no unreasonable conduct of Dr Yaramati in relation to the 2015 blood tests. For further clarification, I find that there was no breach of any duty of care by Dr Yaramati in relation to those tests. In particular, after the January 2015 test alone, there could not have been a serum folate level which was “persistently low” within the pathologists’ comments in the January 2015 report (DTB 2/295).

529. If I am wrong in the above conclusions, I have found that it is likely that coeliac serology testing would have revealed relevant coeliac antibodies to be present, and Dr Yaramati would have referred the plaintiff for specialist gastroenterological opinion consistently with his oral evidence. I have also found that if that occurred, it is likely that advice would have been obtained by Dr Yaramati to undertake treatment for potential coeliac disease by mid-2016. This would have probably included at least following a gluten free diet to test the plaintiff’s reaction. That would likely have resulted in a real improvement in the coeliac antibodies and the plaintiff’s condition: see T347. I accept the plaintiff’s causation submissions in paragraphs 37-43 of his written submissions in this scenario.

530. If there was no breach of duty in relation to the 2015 blood tests, then I have found that there is no other breach of duty of care by the defendant in relation to subsequent advice and treatment in 2016-October 2020 of the plaintiff. If I am wrong in relation to that conclusion, and an appellate court finds that there was a later breach, for example in relation to the plaintiff’s diarrhoea symptoms or following his January 2019 hospital admissions, then it is not entirely clear what would have occurred. It must be recalled that no specialist or hospital recommended coeliac testing until August 2020.

531. It is unclear to me that if earlier coeliac serology testing had occurred in 2018 (following the diarrhoea symptoms referred to by the plaintiff) or in 2019 (following receipt of the Wagga hospital discharge report), when advice would have been given to alter the approach of the plaintiff through the imposition of a recommended gluten-free diet as occurred in 2020. Having regard to Dr Yaramati’s evidence that he would await advice from a gastroenterologist, it is likely in my view that some three to four months would have elapsed allowing for a referral to be provided, an appointment to be made with the specialist and for advice to be given. It would have been following the advice, the taking up of a gluten-free diet (which I consider likely following the plaintiff doing this at the end of 2020), and some lapse of time, that the plaintiff’s diarrhoea symptoms would have reduced to some degree.

532. Some symptoms would probably still have occurred because of the plaintiff’s radiation proctitis (which was still noted in the September 2020 colonoscopy report). I cannot see how most of the osteoporosis, the anaemia or many of the electrolyte issues would have been avoided. I prefer Dr Vickers view that some only of the bone disease would have been avoided but not most of it, due to the cancer drugs the plaintiff had been taking: Exhibit C, joint report, paragraph 10.7. Similarly, I cannot see how the further colonoscopies would have been avoided. The plaintiff had suffered prostate cancer and colonoscopies to check on possible cancer following any symptoms were in my opinion appropriate and reasonable. The more dramatic weight loss in September-October 2020 would likely have been avoided with the feelings of unwellness and weakness partly due to that (but also the September 2020 hospital admission).

527. Clearly, in my view, the plaintiff would still have had urinary symptoms and infection in 2015, prostate cancer in 2015, testing, radiation therapy in 2015, radiation proctitis and inflammation/at least mild rectal bleeding (including up to 2020), the androgen deprivation therapy, the cancer drug injections, the prolia injections, some diarrhoea, the kidney stones and blockages in 2019 and possibly the infections in 2020.

528. In the end, causation as a result of breach of duty depends on any finding as to a specific breach.

Damages

535. The plaintiff claims damages for non-economic loss and past and future out of pocket medical expenses. No economic loss or loss of future earning capacity is claimed.

536. In relation to non-economic loss, the threshold in s 16 of the CLA must be satisfied. No damages may be awarded by a court for non-economic loss unless its severity is at least 15 percent of a most extreme case: s 16(1). Any damages are to be assessed in accordance with s 16. The plaintiff claims $238,500 (33% of a most extreme case) under this head of damages. The defendant submits that no damages should be awarded.

537. It is very difficult to assess any loss under s 16 if I am in error on the breach issue. It really depends on the breach found. The uncertainties on this issue make any assessment by me on a provisional basis of limited help.

538. I turn to the definition of non-economic loss in the CLA and the matters referred to in Lloyd v Thornbury [2019] NSWCA 154 at [161]-[162], [168] and [173]. The plaintiff suffered no disfigurement as a result of any alleged breach. His pain and suffering and loss of amenities of life would be assessed depending on the timing of any breach and the circumstances of the breach. It would also depend on what symptoms would be relieved or reduced by earlier treatment. In my view, as stated above, the plaintiff would still have had urinary symptoms and infection in 2015, prostate cancer in 2015, testing, radiation therapy in 2015, radiation proctitis and inflammation/at least mild rectal bleeding (including up to 2020), the androgen deprivation therapy, the cancer drug injections, the prolia injections, some diarrhoea, the kidney stones and blockages in 2019 and possibly the infections in 2020. The colonoscopies would still likely have occurred having regard to the plaintiff’s cancer history. The plaintiff’s diarrhoea symptoms in 2018/2019-2020 would likely have been less severe. His overall health would likely have been somewhat better, particularly if there was a breach in 2015 resulting in treatment by mid- 2016.

539. Accordingly, if the breach of duty was from say the end of 2018 or early to mid 2019, the plaintiff would have:

1. Reduced diarrhoea symptoms;

2. Less metabolic bone disease;

3. Less fragility in the plaintiff’s bones and a lower risk of fractures;

4. Less weight loss in late 2020;

5. Significantly less feelings of unwellness in 2019-2020 as he would likely be placed on a gluten-free diet;

6. Possibly an avoidance of the September 2020 hospital admission and some testing (although Dr Vickers’ evidence at T348 on causation appears to be inconsistent with other evidence given by him); and

7. A small decreased risk of lymphoma – I prefer Professor Flecknoe-Browne’s opinion and reasoning on this issue: see Exhibit C, joint report, paragraph 11.10.

540. Making an evaluative judgment of non-economic loss if the last paragraph were applicable, I would assess the loss at 24% of a most extreme case. This equates to $39,710 ($722,000 x 5.5%). If the breach was from an earlier time the loss would clearly be assessed at a greater percentage.

541. Past treatment expenses depend on the breach found and its timing. The plaintiff claims just over $14,000. Many medical consultations and procedures would still have been required. I am not satisfied that any loss has been established by the plaintiff under this head of damages. If I am in error, I would only allow a buffer of $1,000 under this head of damages.

542. Future treatment expenses are considered in the light of Exhibit C, joint report, paragraphs 12.1, 12.2-12.3 and 12.6. The expenses referred to in paragraphs 12.7-.8 would probably have been incurred anyway.

543. I also take into account the matters in paragraphs 2 (page 2), 4 (page 3), (b) (pages 4-5) of Professor Flecknoe-Browne’s report dated 6 January 2022 and the opinions in Dr Vickers’ in his two 2022 reports. I was not persuaded on the evidence in relation to the claim for damages concerning orthostatic hypotension. Dr Vickers doubted such a diagnosis could be made and gave reasons for its lack of connection to coeliac disease which were convincing: DTB 1/101. Further, Dr Flecknoe-Brown’s costing in his 2022 report was not pressed at the hearing and thus there was no evidence as to costing: PTB 1/157-8.

544. Heavily discounting the projected cancer treatment costs because of the low risk of this occurring and the risk of falls and fractures, I would have allowed a buffer of $12,000 under this head for future treatment expenses. This also allows an amount for regular review and appropriate testing by the plaintiff’s general practitioner. I note there was no evidence that the plaintiff has been diagnosed in the 2020-23 period as suffering from the cancer referred to by Professor Flecknoe-Brown. Similarly, there was no clear evidence of further falls.

Determination

545. For the above reasons, the following orders are made by the Court:

1. Verdict and judgment for the defendant;

2. The Statement of Claim proceedings are dismissed;

3. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed;

4. Liberty to either party to apply for a different costs order to that set out in (3) above within 14 days of today.

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Decision last updated: 06 December 2023