Den Elzen v Harris
[2008] WADC 106
•25 JULY 2008
DEN ELZEN -v- HARRIS [2008] WADC 106
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 106 | |
| Case No: | CIV:1983/2005 | 11-15 JUNE 2007 & 5-7 FEBRUARY 2008 | |
| Coram: | MACKNAY DCJ | 25/07/08 | |
| PERTH | |||
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Claim under Fatal Accidents Act 1959 (WA) dismissed Claim by plaintiff for damages for nervous shock dismissed | ||
| PDF Version |
| Parties: | KATRIN DEN ELZEN SARAH HARRIS |
Catchwords: | Negligence Medical negligence Whether negligent failure to make correct diagnosis Causation Whether outcome would have differed in any event Turns on own facts |
Legislation: | Fatal Accidents Act 1959 (WA) |
Case References: | Amaca Pty Ltd v Hannell (2007) 34 WAR 109 Chappel v Hart (1998) 195 CLR 232 City of Stirling v Tremeer (2006) 32 WAR 155 Strempel v Wood [2005] WASCA 163 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SARAH HARRIS
Defendant
Catchwords:
Negligence - Medical negligence - Whether negligent failure to make correct diagnosis - Causation - Whether outcome would have differed in any event - Turns on own facts
Legislation:
Fatal Accidents Act 1959 (WA)
Result:
Claim under Fatal Accidents Act 1959 (WA) dismissed
Claim by plaintiff for damages for nervous shock dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G Droppert
Defendant : Mr J R B Ley
Solicitors:
Plaintiff : Julian Johnson
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Chappel v Hart (1998) 195 CLR 232
City of Stirling v Tremeer (2006) 32 WAR 155
Strempel v Wood [2005] WASCA 163
(Page 3)
- MACKNAY DCJ:
Introduction
1 This is a claim under the Fatal Accidents Act 1959 (WA) ("the Act"), and also a claim for nervous shock.
2 Mark Den Elzen (the deceased) was a married swimming pool maintenance business proprietor who was born on 30 December 1961 and who died on 16 September 2004 of various complications following the contracting of hydrocephalus.
3 The claim under the Act is brought by the deceased's widow, the plaintiff, born on 10 June 1964, on her own behalf and that of the two young children of her marriage to the deceased, Rahel Ingrid Den Elzen born 4 November 1992; and Joschka Mark Den Elzen born 14 August 1995, and that for nervous shock on her own behalf.
4 The defendant at all material times was a registered medical practitioner employed as a part-time general practitioner by the Point Walter Medical Centre ("the medical centre").
5 The deceased attended the medical centre on 23 January 2004 with a complaint of headache, and saw Dr Kennan Taylor.
6 He attended again on 27 January 2004, and saw the defendant, with a similar complaint, and was given printed material concerning tension headaches.
7 On 30 January 2004 the deceased's symptoms worsened and he was taken by the plaintiff to Fremantle Hospital, where hydrocephalus was diagnosed, and from whence he was transferred by ambulance to Sir Charles Gairdner Hospital, where he underwent emergency surgery.
8 However, he had already suffered irreversible brain damage, and subsequently experienced other health difficulties, prior to his death almost eight months later.
9 The basis of each of the plaintiff's claims is an allegation that the deceased's death was caused by negligence on the part of defendant, and that amongst other things she ought on 27 January to have referred him for a CT scan, which would, it is said, have demonstrated the presence of hydrocephalus, which would then have been treatable, so that the deceased would have survived, or alternatively would have had a chance of surviving.
(Page 4)
10 The defendant denies that she was negligent and says that given the circumstances of the consultation, including the history and symptoms related by the deceased and her findings on clinical examination "a CT scan of the head was not warranted", whilst the deceased was told to return immediately if his symptoms worsened.
11 The defendant says that in any event the time that would be likely to have elapsed following referral for a CT scan and any subsequent investigation would have been such that the outcome would have been the same.
12 Damages were agreed, subject to certain matters.
Prior history
13 The plaintiff said that she and the deceased met in 1984, and they married in 1989.
14 The deceased obtained a Bachelor of Arts degree from Murdoch University and then worked on a contract basis in local government, first for the City of Cockburn and then for Perth City Council as a swimming pool regulation surveyor, she said.
15 In 1999 the deceased became self-employed as the operator of a business called "Deep Blue Pool Service", she said, the services provided including pool handover, installation of solar heating and pool service and maintenance, and about 85 per cent of the work being sub-contract work for Freedom Pools.
16 The plaintiff said that she and the deceased purchased a block of land in August 2003, and a house was being built for them at the time of his death, such later being completed, and sold for a small profit.
17 Prior to his illness the deceased was very fit, in a happy marriage, without health issues, worked six days per week for nine months of the year and played indoor volleyball each week, the plaintiff said.
18 In January 2004 he began to complain of headaches but continued working, although on Tuesday and Wednesday 19 and 20 January he took painkillers like Panadol and Panadeine, she said, played volleyball on the evening of 22 January, and saw Dr Taylor on Friday, 23 January, three days after the onset of the headaches, the deceased's regular general practitioner being unavailable at the medical centre.
(Page 5)
19 The plaintiff said that on his return from the consultation the deceased said he would not return to work, the understanding being that he had tension headaches and the idea being that he would rest, and he then stayed home.
20 The plaintiff said the deceased had been given a medical certificate "till 30 January for a whole week".
21 Later the plaintiff agreed she had not seen such a certificate until she requested one from the surgery in February, and received a certificate signed by Dr Taylor and dated 13 February 2004.
22 As the deceased was self-employed the plaintiff agreed he would not have had any use for such a certificate, and that she herself had required a certificate in order to obtain benefits from Centrelink.
23 The deceased spent Saturday and Sunday 24 and 25 January in bed or resting on a couch, the plaintiff said, slept for long periods, was lethargic and listless, took medication regularly, was apparently very worried, and told her that if he stopped taking painkillers the headache was too strong to bear.
24 The deceased also telephoned all four members of his family in Melbourne to see whether there was any family history of headache, the plaintiff said, the calls including one to his father, who lived separately, and with whom the deceased was rarely in contact.
25 The plaintiff said that the deceased remained unwell on Monday, 26 January, the Australia Day public holiday, became worse in the afternoon and asked if he could take more medication, although the prescribed four hours had not elapsed. As the medication relieved his symptoms a little that he did not take up an offer to be transported to an after hours clinic, she said.
26 The deceased did not attend the fireworks display that evening with his family, the plaintiff said, but stayed at home with some friends who had visited, and was in bed on the family's return.
27 Dr Kennan Taylor said that until Friday 23 January 2004 he had not seen the deceased.
28 On the morning of that day the deceased presented at the medical centre with headaches, he said, those being of three days duration and present most if not all of that time, but of varying intensity.
(Page 6)
29 The doctor said that his recollection was the headache was "like a sort of background one which went up and down".
30 The deceased denied any history of headache, the doctor said, no trigger factor or other possible cause emerged from questioning, and he noted an absence of suspicious features.
31 Dr Taylor said that in fact one reason he recalled the consultation was that he "almost wondered why [the deceased] was there at one stage, or whether the deceased had been asked to attend, or whether there might have been some other reason for his attendance," and he did not feel he "strongly connected" with the deceased.
32 An examination including that for raised intracranial pressure failed to reveal any abnormality, the doctor said, and he "felt relatively incomplete" and that he had not elucidated the causes of the headaches.
33 Dr Taylor said he accordingly asked for a blood test and adopted a management line that the position should be watched over the long weekend, with the deceased being instructed about any signs of meningism and told that if there was any increase in severity or other symptoms he was to seek medical attention and "were the headaches not to resolve, then he should come back [to] be reviewed."
34 The doctor said he had encapsulated that in the clinical notes, with a notation to the effect of:
"Expectant with baseline invest and review as necessary."
35 The doctor's clinical note concluded with the following:
"(Impression): Tension or migrainous in someone with no preceding history, aetiology not defined."
36 Dr Taylor agreed he effectively told the deceased to rest, as an aid to understanding of his symptoms.
37 In relation to the medical certificate dated 13 February 2004 and signed by him, Dr Taylor said he had no recollection of issuing such, but that in accordance with his usual practice the certificate would have issued on the day that he signed it.
(Page 7)
Deceased's review by defendant on Tuesday 27 January 2004
38 The deceased left no written or other record of what occurred when he consulted the defendant on Tuesday 27 January 2004.
39 The plaintiff gave evidence of what the deceased later told her, without objection.
40 On that morning the deceased took painkillers, the plaintiff said, telephoned the medical centre at about 8.30 am for an appointment, told her he had taken the first available when he was unable to see Dr Taylor, and declined the offer of a lift.
41 The deceased wished to see a doctor as he was very worried that he continued to experience such strong headaches, despite rest, the plaintiff said.
42 Following his departure the deceased returned at about 11.30 am, the plaintiff said, with papers in his hand which he asked her to look at.
43 Those were, the plaintiff said, a printout in relation to tension headache that the deceased said he was given in the consultation, and the couple read them together.
44 The plaintiff said the deceased also informed her that he had seen a "lady doctor", and had been given two samples of the medication Vioxx, each of which he later took, with some apparent benefit.
45 Other than those things the plaintiff said she had no recall of anything else concerning the consultation.
46 The deceased spent the balance of the day of home, she later said, and continued to take painkillers.
47 As to the defendant, when she saw the deceased she was working one day each week at the medical centre, the defendant said, between the hours of 9 am and 1 pm.
48 The defendant said she had graduated in 1993, and after completion of her residency had practised in Australia and the United Kingdom, before returning to Australia, had become a fellow of the college of general practitioners in 1998, and after her marriage had given birth to two children, in 2001 and 2002 respectively.
(Page 8)
49 At the time of giving evidence the defendant said she had temporarily ceased practice, in order to have a break and to care for her children.
50 On Tuesday 27 January 2004 the defendant said she brought up the deceased's records on the computer, prior to seeing him, and read, inter alia, Dr Taylor's clinical note.
51 The defendant said she had regard to that doctor's inability to find a serious cause for the deceased's headache and that he "had diagnosed a tension or migrainous type of headache."
52 On calling the deceased for his appointment the defendant said she considered he "looked very well" and was very healthy looking, and there was nothing to indicate what he needed.
53 On being asked as to that the deceased, after making reference to Dr Taylor's advice that he suffered from migraine or a tension headache, said he "questioned that diagnosis … as he didn't have any stress in his life and so he wondered if that was correct and he was still having those headaches", the defendant said.
54 A history was taken from the deceased, the defendant said, which she typed so that the deceased could see and confirm it.
55 After reviewing the blood test results she then carried out an examination, she said.
56 It is useful to set out the defendant's clinical note in full:
"CLINICAL NOTE – Doctor: SH – Date: 27/01/2004
headaches persisting though less severe.
Blood Pressure: Sys-134, Dia-80, Pulse-72
works swimming pool maintenance.
onset last week in pm.
then daily and worsening.
no vomiting or nausea.
no diplopia.
(Page 9)
- no gait problems.
no fever.
o/e PERLA.
fundi normal.
neuro normal apart from some sl decreased sensation left lower face.
FBC and ESR normal.
given sample vioxx.
P/r/v next week or sooner if worsening."
57 When obtaining the history the deceased was articulate but not particularly forthcoming, the defendant said, and non-leading questions were answered shortly.
58 Notwithstanding that and the brevity of the recorded history the defendant said she recalled the deceased telling her a number of things.
59 Those included the absence of any significant history of headache, the deceased's uncertainty as to the day of onset which he thought was probably Tuesday 20 January, that the first headache had come on during the afternoon while he was at work, that the headaches were of variable intensity, sometimes being quite mild and at other times severe, that such were not continuous, that there was not always a relationship to the taking of painkillers, that the headaches were present for much of the previous Saturday and Sunday, and were severe then, but had "not been as bad for the last two days, that there was improvement."
60 The deceased also told her that the headaches were a "band – like pattern around his head", when present were constant and not throbbing, and did not have a pattern, she said.
61 On being asked how the headache then was the defendant said that the deceased told her:
"He had had a headache that morning but that it had now gone and he made a comment to the effect that its typical when you go to see the doctor and you don't have the problem."
(Page 10)
62 On commencing the examination the defendant said her index of suspicion was not as high as it might have been because the deceased looked so well, although she was still very concerned, her main concern being about a space occupying lesion, "presumably" a brain tumour.
63 The deceased's appearance did make her less worried "about an urgent cause, such as a haemorrhage or meningitis or the fact that he looked so [well] hydrocephalus", the defendant said.
64 After a general inspection and the taking of the deceased's blood pressure and pulse, the two latter being relevant to hydrocephalus, the deceased's eyes and cranial nerves were checked, the defendant said, and a neurological examination was carried out.
65 The deceased had not initially responded to touch to the left side of the cheek, the defendant said, but that on repetition was normal, although she thought it worthy of note, and was uncertain of its implication.
66 Dr Harris said that following her examination she discussed her impressions with Mr Den Elzen:
"I said to him that he – the fact that his headaches were improving and that he didn't have a headache and seemed well at the moment. I said that he – my overall impression or that I felt that I couldn't identify a serious or an urgent cause at that point because – and I went through with him the types of things that were reassuring such as the fact that his headaches were improving and they actually seemed to be getting better and he seems to be well at the moment, the fact that there was no pattern to the headaches, that he didn't have any nausea or vomiting or double vision or any other neurological disturbance and that essentially his neurological examination was normal. I said that I couldn't find an urgent cause or serious cause at the moment and that the pattern of his headaches was consistent with the tension type of headache and the pain he was experiencing and that that was a possible diagnosis.
What did he say? ---He mentioned again about the stress and that he didn't - - -
Did he tell you about the stress?---He said, "You know I mentioned to you that I didn't have any stress," and I explained to him that tension was a bit of a misnomer, the term, that people applied that it was due to stress and although stress was
(Page 11)
- often an underlying factor it wasn't essential – that the tension itself actually referred more to tension of the scalp muscles and that the actual mechanisms were often unclear, so that just because a person doesn't identify stress doesn't mean that that can't – that's not what is causing the pain. I did not - I did also stress to him that I did so – having said that I couldn't – or telling him that I couldn't find an urgent problem at the time, I did also stress to him that that wasn't to mean that there wasn't a serious problem there and I clearly recall going through some length with him about the types of things that he would need to be vigilant for in case things changed.
What did you tell him he had to be vigilant for?---I told him that if his headache became worse or more constant, that if he found that his headache was worse with lying down or if it was worse first thing in the morning, if he developed any nausea or vomiting, any double vision then he needed to come straight back or go to the emergency department if it - - -
Anything else?---I think – yeah, some of the other things I mentioned that I said to him, I said 'Worsening of headache, so your headache becoming more worse or more constant if you are finding that it's worse with lying down, any nausea or vomiting, any double vision, any dizziness or pins and needles or weakness.'
And when you were telling him those things, what was he doing?---He was listening - - -
He was listening?---Yeah, because he was acknowledging me and responding to me and as I mentioned also, I went through – when I put my clinical record on the computer I discussed it as I put it in with him and I believe I talked to him as well about the sensory change on his face as well and saying that that was something that we, you know, that could be potentially – could be something that was important and that's why we need to - - -
Did you tell him anything else about the sensory change?- - - No. No I don't think so. I just said that when - that I would see him because at that point I was only working once a week on Tuesday and the next time I would be able to see him was the following week and that I would like him to come back and see me but that in the meantime, if any of these things
(Page 12)
- intervened he needed to come straight back to the surgery or else to the hospital if it was out of hours.
When you said to him that he had a – you thought he had tension type headaches, what did he say? You said he was - - -?---Well, I, as I said, first, initially, he was a bit sceptical because of the lack of stress until I explained to him that that wasn't a necessary prerequisite and it was probably at the point that I gave him the information which was – and went through it with him, the first was, I think – had been - - -
You gave him the – like what information do you mean? ---The – is that here – or the information sheets.
Could the witness please been shown exhibit 1?---Thank you. That's right, so I think, probably the first one.
Just look at those documents?---Yes, sorry.
What are those?---These are sheets that – patient information sheets relating to tension headache or tension type headache."
67 Samples of Vioxx were given to the deceased, the defendant said, he declined a "sick note", and was told to go home, rest and take things easy.
68 The defendant said the consultation took about 30 minutes, which was longer than usual, but the extra time was warranted as she "wanted to make sure that (she) wasn't missing an urgent problem".
69 On the way home that day she thought about the deceased, the defendant said, and the fact that the headaches had been severe at times, without any clear diagnosis.
70 She also felt "the history was one of an improving situation", that the deceased had been well, that nothing of an urgent nature had emerged, and that instructions for him to seek help had been put in place, she said.
71 The possibility of a brain tumour had not however been "discounted" by her, the defendant said, is why she had arranged to see the deceased again.
72 In cross-examination the defendant said it was a judgment call as to whether to send the deceased for a CT scan or to wait and see, but she felt that she had excluded an urgent problem.
(Page 13)
73 She balanced, she said, the risk of a CT scan against the likelihood of something like a brain tumour, and there was a discussion with the deceased about doing a CT scan the following week.
74 The defendant agreed she had been aware of the possibility of hydrocephalus, that if such was the cause then by the time symptoms emerged a person could be at risk, and that the condition could lead to serious injury or death, but thought there was usually sufficient time for treatment, and that it was very unlikely the deceased would have been at risk.
75 She had not, the defendant said, foreseen the deceased having a rapid decline.
Deceased post-consultation history
76 The plaintiff said that the deceased spent the balance of Tuesday 27 January at home, as well as Wednesday, and continued to take medication, but on the latter evening expressed an intention to return to work the next day, his rationale being that if it was a tension headache he wanted to manage it.
77 He went off to work on Thursday 29 January but returned after a couple of hours, saying the headache was too strong to manage, the plaintiff said, but after resting in the afternoon went to volleyball that night, exercise being indicated by the defendant's written material.
78 The plaintiff said that the deceased went to work on Friday 30 January.
79 Mid-morning she received a call from him, she said:
" 'Katrin, please come and get me. I am too ill to drive'."
and on going to the location where he was working:
"He looked really bad. He was pale. He was vomiting. He was sitting down on the concrete floor."
80 The plaintiff called the defendant's surgery, she said, but then decided to take the deceased to the closest emergency department, at Fremantle Hospital.
81 On arrival the deceased was scarcely able to walk, she said, and shortly after his condition deteriorated, and whilst lying on a bed he began
(Page 14)
- to moan with pain, and throw himself about, after which he was given several vials of morphine by hospital staff.
82 By that time he was unable to talk, the plaintiff said.
83 The deceased was given a CT scan, and the plaintiff said that she was told by a doctor that the deceased had severe hydrocephalus and needed a shunt, but as the hospital did not have a neurosurgery department it would be necessary for him to be taken to Sir Charles Gairdner Hospital (SCGH), via ambulance.
84 The plaintiff accompanied the deceased on the journey, in the course of which he ceased breathing and required insertion of a tube, she said.
85 On arrival at SCGH he was met by a medical team of about 10 people in the emergency department, she said, and after she gave permission for a shunt to be inserted he was taken for surgery.
86 After the deceased was returned to intensive care the plaintiff was told he was in coma, she said, and on going to him saw that he was "hooked up" to various machines, and was comatose.
87 An MRI scan of the deceased was performed at the hospital on 4 February, the plaintiff said, and she was told he had brain damage and that she may need to consider non-treatment.
88 The following week the plaintiff was told the deceased had begun moving at the weekend, the plaintiff said, and it was decided to insert another shunt, and over the following weeks internal shunts were then fitted.
89 The plaintiff said that the deceased gradually improved to the point where he opened his eyes and made eye contact, with an ability sometimes to blink in response to a question, but he never recovered the ability to speak, and remained bedridden, although sometimes put into a wheelchair.
90 On one occasion the plaintiff observed the deceased pass a ball from one hand to another, she said, and at times he was also able to raise his left foot a little.
91 The deceased was fed through a "peg" into his stomach, she said, breathed via a passage established by a tracheotomy, appeared to understand instructions to attempt move a limb, and attempted to follow such, albeit without success.
(Page 15)
92 After about two months at SCGH the deceased was transferred to the Shenton Park rehabilitation clinic, and remained totally dependent whilst there, the plaintiff said.
93 During that time a blocked shunt had to be replaced at SCGH, and the deceased also contracted pneumonia which necessitated removal of shunts and the fitting of external shunts.
94 As to the plaintiff's position:
"It was just really difficult because at that period of time when he had these external shunts and they couldn't really put him in a wheelchair either, he was in a high dependency unit and I'd be walking down the hallway and I'd be hearing him moaning down the hallway, and so at that point in time I went twice a day and I'd be breathing him sometimes through the pain. (sic)"
95 The deceased's cyst was removed and he went to live at Brightwater, the plaintiff said, where his condition deteriorated so that both his right arm and left leg contracted and could not be straightened.
96 He experienced a great deal of pain as a result, she said.
97 By August 2004 the deceased had been returned to Shenton Park, the plaintiff said, and was in a very bad state so that she was asked to make a decision whether treatment should cease, which she did, and that then occurred.
98 Although the possibility of death within 48 hours was conveyed to her, the plaintiff said the deceased lingered on for another three weeks.
99 The deceased initially remained at Shenton Park with the plaintiff sharing his room, and he was then moved to Murdoch Hospice.
100 The deceased died six days later, on 16 September 2004.
101 The plaintiff said:
"Well, after he died, I was physically and emotionally completely exhausted because in the seven and a half months that he lived, I kind of went to hospital nearly every day and that was very draining and also always having to make these decisions around all of his surgeries and that that had all been very, very exhausting and seeing him in so much pain and seeing him suffer so much was very, very difficult to deal with."
(Page 16)
Deceased's condition
102 Although not formally admitted, it was common ground at the trial that the deceased did experience hydrocephalus with a level of obstruction at aqua duct level.
103 The hydrocephalus caused an effacement of the cortical csulci over the cerebral hemispheres and effacement of the basal cisterns.
104 The cause of the condition was a colloid cyst, about 7 millimetres in size, probably developmental in origin, that being in the third ventricle, and blocking drainage of cerebrospinal fluid and causing as a result a build up in pressure within the cranium, and hence on the brain.
105 It was that which produced the deceased's headache.
106 Eventually the pressure became so severe as to compress the posterior cerebral arteries and to cause posterior cerebral infarcts, and therefore significant brain damage, so as to make recovery unlikely.
107 Initial treatment at Sir Charles Gairdner Hospital on 30 January 2004 included the placement of an external ventricular drain, with surgical removal of the cyst in April 2004.
108 The increase in volume of the CSF fluid would ordinarily be relatively slow, so as to present as a relatively flat line on a graph, but, once a particular point had been reached, the increase in pressure relative to it would be steep.
109 The symptoms associated with intracranial pressure commonly include headache, vomiting and papilloedema, although all would not necessarily be present, particularly in the early stages of the condition.
110 Headache would usually occur in the early morning, and would often be associated with vomiting at that time.
111 In the present case the contrast CT scan taken at Fremantle Hospital on 30 January 2004 revealed the presence of the colloid cyst, and also of hydrocephalus.
112 Given that the deceased was still able to function with some degree of normalcy up to and including 29 January the pressure in his cranium had probably not then commenced its steep increase.
113 This was not a common condition.
(Page 17)
114 Dr Elizabeth Lewis, a consulting neurosurgeon called on behalf of the plaintiff, said in her report of May 2007:
"The average GP would never see a patient with a colloid cyst of the third ventricle."
115 In evidence the doctor said it was "a pretty rare condition".
116 Dr Lewis said the cyst had probably been present for a long time, and had perhaps grown to a size which caused symptoms.
117 Had the deceased been in a hospital with neurosurgical facilities at the time of his deterioration Dr Lewis said there would have been an 80 per cent chance of a good outcome with a 20 per cent chance of disability or death.
118 Mr Michael Lee, an experienced neurosurgeon, gave evidence on behalf of the defendant, having earlier provided a number of reports and a substance of "further evidence", all of which were tendered.
119 In his report of May 2007 Mr Lee said that so far as he could make out he and Dr Lewis had no disagreement in relation to the neurosurgical aspects of the case and her opinion coincided with his.
120 Mr Lee did not, however, consider it to be necessarily the case that a CT scan obtained after the second consultation but prior to 30 January would have revealed the presence of hydrocephalus, although he said it would have shown a degree of ventricular enlargement, which meant some degree of hydrocephalus was present.
121 He agreed with Dr Lewis that the deceased's condition was rare and unlikely to be ever seen by a general practitioner.
122 In an earlier report of May 2007 Mr Lee said there was "ample precedent in the medical literature of colloid cysts of the third ventricle not being diagnosed because of their rarity and varied presentations with fatal outcomes".
123 Had the deceased undergone a CT scan prior to 30 January, and had the radiologist who carried out the scan considered there was significant ventricular dilation or enlargement Mr Lee said it was more probable than not the deceased would have received timely treatment.
124 In his substance the doctor opined:
(Page 18)
- "As I say in my reports dated 13 December 2005, 21 September 2006 and 1 May 2007, it is my opinion that if Dr Harris was given the history which I understand she says she was given on 27 January 2004, and if she obtained the results of a neurological examination which I understand she says she obtained on 27 January 2004, it would have been quite reasonable and appropriate for her not to have referred Mr. Den Elzen for a cranial CT scan on that day. In my opinion, a reasonably competent and careful general practitioner would, in those circumstances, have done the same thing."
125 Mr Lee had earlier reported, in December 2005:
"With the benefit of hindsight, it might be suggested that a patient who has no previous history of headaches and who presents with severe headaches but without neurological signs should undergo a CT scan of the head. Whilst this may be occasionally appropriate, it is not routine with only 10.8% of patients with a headache problem being referred for diagnostic imaging. The statistics do not provide information as to the outcome of diagnostic imaging i.e. whether the CT was positive or negative from a diagnostic perspective. I do not believe that there is justification for routine CT scanning of the head in patients who present in this way from a clinical benefit perspective. The majority of patients with episodes of severe headache will have normal CT head scans.
In hindsight, the relief of headache that Mr. Den Elzen was experiencing was almost certainly a reflection of intermittent episodes of increased intracranial pressure rather than an indication of improvement but as I have mentioned, I think it's inappropriate to ascribe to general practitioners the skills and clinical acumen of a neurological specialist.
The circumstances under which specialists would see such patients is of course, completely different. These patients have already been selected by general practitioners as giving cause for concern and the specialist is expected to come up with the answer, be it a common or extremely rare condition.
From the documents provided, it would appear that Dr. Harris inquired as to Mr. Den Elzen's clinical course since being seen by Dr Taylor four days earlier but was not informed that
(Page 19)
- Mr. Den Elzen was unable to work during the long weekend, remaining largely immobile and sleeping for long periods of time. Had Dr Harris been aware of these facts it might have been information that might have caused her to contemplate a CT scan. It would have been a difficult decision, given the documents indicated that at the time Dr. Harris saw Mr. Den Elzen, he was asymptomatic and neurologically intact."
126 In his report of May 2007 Mr Lee suggested:
"…
I think the real issue in these proceedings, is not that Dr. Harris should have obtained a CT scan urgently but the disparity between Dr. Harris' assessment of Mr. Den Elzen and Mrs. Den Elzen's allegations. If there was no disparity then obtaining a CT scan is only one of the options that would have been available to Dr. Harris."
Medical evidence about plaintiff
127 The plaintiff called a psychiatrist, Dr Jane Fitch, who said she saw the plaintiff twice in August 2006 at the request of her solicitors, and provided a report the following month.
128 In that report the doctor expressed the view that during the period of the deceased's hospitalisation the plaintiff described acute traumatic stress reactions, and that a post-traumatic stress disorder subsequently developed "with key symptoms of re-intrusive imagery, anxiety symptoms, retriggering, avoidance, emotional numbing and irritability and insomnia".
129 Those had persisted in a chronic form, the doctor said.
130 The plaintiff also experienced symptoms of middle insomnia with intense and protracted crying and deterioration of mood, whilst her physical health suffered, Dr Fitch said, and those symptoms were consistent with the development of a major depressive disorder which had become chronic and persisting.
131 The plaintiff also had a complicated grief reaction, the doctor said.
132 Dr Terace, also a psychiatrist, saw the plaintiff in May 2007 at the request of the solicitors for the defendant, and reported that he did not find "overt signs of clinical depression (then present)", although the plaintiff's mood was "demoralised".
(Page 20)
133 The plaintiff gave an account of "earlier acute grief" moderating to chronic residual intermittent and low grade symptoms of a "chronic grief process", the doctor stated, those not being sufficient to meet criteria for a post-traumatic stress disorder or major depression.
134 The doctor set out a history in his report which made no reference to the plaintiff having formed any other intimate relationship but which was rather consistent with her continued maintenance role of a widow.
135 In evidence Dr Terace said he asked the plaintiff whether she was in a relationship and was told she was not, something he noted.
136 He was now aware the plaintiff was in a relationship, he said, and that confirmed his views as to her mental health.
137 The plaintiff did experience acute grief, Dr Terace said, but that had no specific value in identifying the kind of trauma necessary to promote a post-traumatic stress disorder.
138 In her evidence the plaintiff said that she was in fact now in another relationship, that having formed in about November 2006.
139 The plaintiff denied that she was asked any questions about a relationship by Dr Terace, and said she did not volunteer anything about it as that was "how the whole interview was set up", the doctor asking questions, she answering.
Liability issues
140 The plaintiff's amended statement of claim contains allegations that the deceased's death was caused by breach of duty by the defendant in that she:
"…
16.2 Failed to obtain, as she should, a proper history from the Deceased at the consultation. She should have, but did not:,
…
16.2B make enquiry of the Deceased at the consultation concerning the features of the Deceased's headaches, the extent of his analgesic use, the effectiveness of such analgesia, his activities since
- the first consultation (and the extent to which these departed from his normal activities) and his work activities since that time. Had she done so, she would have identified the facts pleaded at paragraphs 4 and 7:
- Had the defendant sought and obtained the further information pleaded in paragraph 16.2A and 16.2B, as she should, this would have cast doubt on her view that the Deceased's headache was a tension headache and she should have arranged the Deceased's referral for a head CT scan.
…
16.4 Failed to take appropriate measures to exclude more sinister possible (if unlikely) causes for the Deceased's headache, including, as was in fact the case, raised intracranial pressure due to an intracranial lesion (in the Deceased's case, in fact a 7mm cyst in his 3rd ventricle). She should have arranged at the second consultation for the Deceased to undergo a CT scan of his head."
141 In the plaintiff's closing submissions counsel described those as "[t]he two critical allegations of negligence …"
142 The plaintiff called two general practitioners, and a neurosurgeon.
143 Dr Stephen Wilson is a general practitioner of over 20 years experience who practises in Bassendean.
144 In a report of March 2007 he noted a "substantial disparity" between the defendant's report of what she was told by the deceased and what the plaintiff said about him, that disparity being described by the doctor as "critical".
145 The taking of a history was generally acknowledged to be "90% of diagnosis", the doctor stated.
146 In relation to the defendant's record of the consultation Dr Wilson said he could not "really fault the record of the examination findings – her notes are thorough of the examination and the detail of it in fact is to be commended".
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147 Dr Wilson also said that a clinician did have to ask appropriate questions, as sometimes "it may be like drawing teeth".
148 In cross-examination Dr Wilson accepted that, based on the history the defendant said she had obtained, the likelihood of referral would have been considerably reduced for most general practitioners, and a wait and see policy would have been reasonable.
149 Dr Amanda McBride is an experienced general practitioner in New South Wales and an associate professor in general practice in primary care in the University of Notre Dame, Sydney. Dr McBride said in evidence that if a patient presented with a seven day history of headache she would take as full a history as she could.
150 The doctor was asked in that regard:
"In the context of – you said you would want to know about day-to-day functioning. In the context of seeing someone on a Tuesday morning after a long weekend, what would that extend to?---Thank you, sir. I would like to know again was the pain there through the long weekend, which in particular if it is a tension headache I would wonder whether or not as Saturday, Sunday went into Monday a tension headache might actually improve from rest, from being removed from a stressful situation. I would ask about whether or not – what plans they had had on the long weekend, could the patient participate in those plans, was the patient functioning with their family and friends as people often do in the long weekend, were they able to – how did they normally like to relax and could they do that? Did they normally do home handyman or woman stuff on a weekend and could they participate in that? Just to see what was their normal long weekend or three days off or whatever - some people work more on a long weekend – and did the pain that that person had prevent them functioning in that way as they would normally do."
151 Dr McBride asserted that the deceased ought to have been referred for a CT scan by the defendant, but in cross-examination, appeared to resile from that suggestion, in the event that the second consultation had taken place as described by the defendant.
152 The defendant called two general practitioners.
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153 The first, Dr Bernard Pearn-Rowe agreed a history was important for diagnosis of a headache.
154 Dr Joe Kosterich also agreed a complete history, together with an examination, enabled a doctor to correctly diagnose a great majority of headaches.
155 In relation to a need to question a patient as to the possibility of work ordinarily being done over a long weekend, Dr Pearn-Rowe said however that most would assume that was not done and it was the kind of thing one would hope a patient might volunteer.
156 Dr Kosterich agreed that would not be routinely asked.
157 In relation to the allegation that the defendant failed to take an adequate history, made in par 16.2B of the amended statement of claim, there are a number of subsidiary issues that must be determined prior to a resolution of that.
158 First there is a question as to what was in fact said.
159 In that regard I am satisfied the evidence of the defendant contained an honest and reasonably accurate account of the salient points of her conversation with the deceased.
160 The defendant's clinical note is brief, in relation to the history, whilst she gave evidence of a more detailed conversation, and that must be considered.
161 The defendant at the time would however have had only a very limited number of patients each week, given her hours, and her evidence that she gave the matter particular attention is supported by the extent and detail of her examination set out in the notes, which as stated was described by the plaintiff's expert, Dr Wilson, as commendable.
162 It is more rather than less likely that the defendant would have been concerned to obtain an adequate history, in those circumstances.
163 Further, the defendant said she became aware of the deceased's plight only five weeks after the examination, when the consultation would still have been relatively fresh in her mind, and contacted the plaintiff, who apparently told her she was to blame.
164 From that point the defendant of course would have had every reason to maintain a recollection of what had occurred.
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165 There was a consistency in the defendant's recounting of what was said which I did not consider resulted from any undue rehearsal, and which was not shaken by cross-examination.
166 The defendant impressed me, in relation to her demeanour, as both honest and caring, albeit naturally troubled by what had occurred.
167 It was not really suggested that anything she attributed to the deceased in their conversation was inconsistent with his condition, from a medical aspect.
168 The plaintiff's case is of course, in part, that given her evidence as to the deceased's apparent condition over the weekend, and his complaints to the plaintiff, it was improbable that he would have given the account to the defendant attributed to him.
169 That involves a consideration of the deceased's other conduct, and of the plaintiff's evidence.
170 As to the former, I accept the evidence of Dr Taylor to the effect that the deceased was relatively unforthcoming at the earlier consultation.
171 The plaintiff conceded the deceased had refused an offer to be taken to an after hours clinic on Monday afternoon, and a further offer of a lift to go to see the defendant on Tuesday.
172 The reason given for the former by the deceased was that medication had provided some relief for his symptoms, it was said, whilst on Monday morning the deceased also took medication, and it is said then told the defendant a headache experienced earlier had gone.
173 The defendant said the deceased was not particularly forthcoming when the history was obtained, and whilst I would not over-emphasise the significance of the above, as a guide to the deceased's conduct, it is consistent with that.
174 The plaintiff was, generally speaking, an impressive witness.
175 Given the events that unfolded complete objectivity on her part would in my view be however almost impossible, and a degree of rationalisation inevitable.
176 Further, apart from the deceased's verbal complaints the plaintiff could speak only of her perception of his condition, as she recalled it.
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177 There were two matters relevant to the plaintiff's credit which counsel for the defendant submitted ought result in adverse findings.
178 The first arose from Dr Terace's evidence that he was not told the plaintiff had entered into a relationship with another man, when she was asked about that.
179 In that regard, given that a medical interview is not a formal process, strictly speaking, and that there is a possibility of a question being overlooked, it is a significant step in my view to attribute untruth to a person being reviewed in circumstances like this, and I would not do so here, although the matter is one of concern.
180 However, it seems to me that the plaintiff, who is plainly an intelligent woman, must have appreciated that the information would be highly relevant to a psychiatrist, given the purpose of the review and in all the circumstances, and I consider her failure to inform Dr Terace of it revealed a degree of partisanship, and that her excuse for not doing so was a lame one, and not credible.
181 The second matter related to the medical certificate issued by Dr Taylor, I find on 13 February 2004, that being the only certificate he issued.
182 The plaintiff's claim was initially advanced on the basis a certificate was given to the deceased by the doctor on 23 January, with the plaintiff's experts being told that and it being alleged in the plaintiff's opening submissions.
183 The plaintiff, as stated, also said in examination-in-chief that was the case, although conceding she had not seen it.
184 The assertion that a certificate had been given to the deceased was not correct, but it is of course possible the deceased told the plaintiff he had a certificate, so it could not be said the matter impacts on the plaintiff's credit.
185 In relation to this issue of the history obtained by the defendant I then make findings as follows.
186 The defendant's evidence of what occurred during the second consultation is reliable.
187 If there be necessary conflict between her evidence and that of the plaintiff as to the deceased's condition, I prefer that of the defendant.
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188 The difference might simply be due to the manner of the deceased's recounting of his symptoms, as opposed to the plaintiff's perception of them.
189 The history taken by the defendant was not inadequate, but was rather consistent with her obligations as a reasonably competent and careful medical practitioner in general practice, given the information provided to her, the observations she made on examination, and in all the circumstances.
190 The second issue concerns the fact that the defendant did not send the deceased for a CT scan after the second consultation.
191 In my view this issue largely, although not entirely, turns on the above issue as to the taking of the history.
192 In any event, I accept the evidence of Mr Michael Lee in relation to it.
193 As stated, Dr Wilson was not necessarily of a different view to Mr Lee.
194 It might well be that Dr McBride did not hold a different view either, but in any event I did not find her to be a persuasive witness, and considered that a number of the matters set out in her reports and evidence did not stand up well under cross-examination.
195 The deceased presented to the defendant with a history of headache which had improved over the previous two days, which was not then present, and which responded to simple analgesia.
196 Although there was still a possibility of a sinister cause for the headache, the apparent likelihood that there could be a rapid deterioration in the deceased's health was small.
197 Given that, the history, and the results of the examination, I accept the defendant was justified in adopting a "wait and see" approach, conditioned as it was with advice to the deceased to take immediate steps to obtain assistance in the event that his symptoms worsened.
198 The defendant was not negligent in not sending the deceased for a CT scan on Tuesday 27 January 2004.
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Causation
199 The defendant also raised an issue of causation in the re-amended defence, which I ought deal with, although of course given the above it is not legally relevant to the outcome.
200 It was pleaded that even had the deceased been referred for a CT scan it would not have been on an urgent basis, so that by the time the scan was likely to have been arranged the catastrophic events of the 30 January would have already occurred, and the outcome would have been the same.
201 I think, based on what occurred, the deceased would probably have attended a hospital, in which case the scan would have been done within the relevant period.
202 The result of any scan is also necessarily uncertain, and in particular whether it would have produced a view that other action needed to be immediately taken.
203 However, this is in my view a case where the damage would be the very sort of thing that would be likely to occur in the event of breach, so that an evidentiary onus would fall on the defendant to show an absence of causation: Chappel v Hart (1998) 195 CLR 232; Strempel v Wood [2005] WASCA 163 at [48] et seq; City of Stirling v Tremeer (2006) 32 WAR 155 at [80]; Amaca Pty Ltd v Hannell (2007) 34 WAR 109.
204 In the circumstances the defendant would not be able to do that.
Damages
205 As stated the quantum of damages in relation to each claim was agreed.
206 Those pursuant to the claim under the Act were agreed in the sum of $330,000, subject to the approval of the Court in relation to the infants' claim.
207 I was told that the agreement did not extend to the question of what deduction, if any, ought be made for contingencies.
208 It is appropriate that I make a provisional allowance in that regard.
209 I note the neurosurgical evidence that even had timely treatment been given there would have been a risk of morbidity or mortality.
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210 I consider a deduction of 15 per cent for contingencies would be reasonable.
211 Damages in relation to the plaintiff's own claim for nervous shock were said to have been agreed in the sum of $20,000, subject to a finding that the plaintiff in fact did experience the onset of a discrete psychiatric injury, as opposed to feelings of acute grief.
212 In that regard it is again appropriate to make a provisional finding.
213 I had no difficulty with the manner in which either Dr Fitch or Dr Terace gave evidence, but given the shocking nature of the events of 2004, and the fact that Dr Fitch had the advantage of seeing the plaintiff closer in time to those events, I would prefer her evidence on the particular issue, and would find the plaintiff did suffer psychiatric injury as a result of the onset of the deceased's incapacity and subsequent death.
Conclusion
214 However, for the reasons already given I find that both the dependents' claim under the Act and the plaintiff's own claim for nervous shock must be dismissed.
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