Eames v Orgill & Ors
[2000] VSCA 119
•21 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 7767 of 1998
| PAMELA ANNE EAMES |
| Appellant |
| v |
| DR WILLIAM ORGILL, DR CAROLYN RE and DR RUTH HAND |
| Respondents |
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JUDGES: | BROOKING, CHARLES and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 June 2000 | |
DATE OF JUDGMENT: | 21 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 119 | |
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NEGLIGENCE – Medical practitioners – Alleged failure to detect breast cancer – No error or deficiency in judge’s charge regarding plaintiff’s evidence or case against each doctor.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | R.K.J. Meldrum, Q.C. | Vaccaro’s |
| For the Respondents | D.E. Curtain, Q.C. J.L. Parrish | J.W. Ball & Sons |
BROOKING, J.A.:
Pamela Anne Eames sued three general practitioners in the County Court for damages for negligence and breach of duty, alleging that she had complained to each of them of an abnormality in her right breast. Cancer had been diagnosed by a fourth doctor, Dr Langenegger, in July 1991 and a right mastectomy had been performed a few days later. The plaintiff alleged, as against each defendant, that if he or she had acted with reasonable care the cancer would have been detected earlier than it was in fact and there would have been less radical surgery or a better prognosis. The trial - a long one - was by jury and there was a verdict for each defendant, negativing negligence. The plaintiff has appealed. The notice exhibits the usual deficiency of not showing what judgment or order is sought. The plaintiff in fact asks for a retrial. I shall continue to call the parties the plaintiff and the defendants and for brevity, without any disrespect, I shall refer to the doctors without using the title "Doctor".
In the statement of claim the plaintiff alleged, against Dr Orgill, that she had consulted him on or about 6 September 1985 and sought his advice about a right breast thickening. She alleged that he had told her that "it was just slight breast tissue thickening". The second defendant, Dr Re, was Orgill's partner. The statement of claim alleged that the plaintiff had consulted her on or about 4 February 1987, seeking advice about the right breast thickening, and told her of her consultation with Orgill and that Orgill had told her that "it was just slight breast tissue thickening". She alleged that she was told by Re also that "it was just slight breast tissue thickening". The statement of claim alleged a further consultation with Re, on or about 7 December 1987, in which the plaintiff sought her advice about the thickening and reminded her that at the previous consultation she had told the plaintiff that "it was just slight breast tissue thickening" and now - at the second consultation - asked advice about whether a mammogram might be warranted.
The statement of claim went on to allege, against the third defendant, Dr Hand, that the plaintiff had consulted her in about January 1990 or alternatively June 1990 and sought her advice about the thickening and told her of the opinions expressed by Orgill and Re. Hand was not in partnership with the first two defendants.
In summarising the allegations in the statement of claim I have made a number of benevolent implications about what the plaintiff was seeking to allege as regards the giving to her of medical advice.
The plaintiff's evidence-in-chief was that she consulted Orgill on about 6 September 1985. She said that she had had a tubal ligation in about July 1984 - the precise date was later shown to be 20 July 1984 - and clearly recalled that roughly twelve months after that she first became aware of a thickening at the top of the right breast. She consulted Orgill for one of her regular pap smears on about 6 September 1985 and when she saw him she was also concerned about the thickening. She described that thickening in her evidence, also describing it as a "ropiness" or "bumpiness", very similar to a varicose vein. Three questions and answers in her evidence-in-chief at p.44 of the transcript are very important:
"Was anything said at this consultation by you in relation to that what you call ropiness?---Doctor Orgill told me not to worry about it, it was just - just slight breast tissue thickening.
Do you remember anything that you said to him in relation to the thickening?---I was surprised that the breast extended that far up, I always thought the breast was just the fullness, I never realised that breast tissue does extend a little further.
Do you recall, you may not recall, do you recall saying anything to Dr Orgill about the thickening?---Not that I recall, no."
When the plaintiff was giving evidence-in-chief the statement of claim made no allegation against Orgill concerning a consultation in January 1986. She said in chief that she saw him in that month - later she accepted that the date was 2 January - and was treated by him as a result of pleurisy and that she just happened to ask him about an ache she was getting at the top of the left breast that she was concerned about and had been getting for some time off and on. She said she asked him what that could be and that he did not examine the breast but just told her, "Could be anything. Don't worry about it".
Plaintiff's evidence-in-chief was that on 4 February 1987 she saw Re for one of her regular gynaecological examinations. Re examined her breasts. She said she asked Re about the thickening on her right breast and told her what Orgill had previously said to her about it and that Re agreed with what Orgill had said and assured her that there was nothing to worry about.
According to the plaintiff's evidence-in-chief she saw Re again on 7 December 1988 for her usual gynaecological examination and again asked Re about the thickening on her breast and this time suggested a mammogram, and Re said, "It's not necessary. It's just slight breast tissue thickening".
The plaintiff's evidence-in-chief was that she consulted Hand on 18 June 1990 and asked for her breasts to be examined and for an opinion on the thickening of the right breast. She told Hand that she had been to two other doctors and mentioned what they had told her and Hand agreed "that that's all it was". She herself requested a mammogram but was told by Hand that a mammogram was not necessary and she went on to argue with the doctor about whether she should have one.
At the end of her evidence-in-chief the plaintiff said that shortly after the mastectomy she had, in August 1991, consulted Langenegger and, as a result of a request or enquiry of hers, she was shown her medical records. Langenegger was a member of the same practice as Orgill. She says she saw a notation bearing a date - which she could not recall -"slight breast tissue thickening".
All three defendants were jointly represented. Orgill denied that the plaintiff had ever consulted him about a suspected abnormality of her breast. Indeed, he denied that the consultation with him on which the claim against him was based - a consultation on or about 6 September 1985 - had ever taken place. His evidence on the latter point was not challenged by the plaintiff's counsel. A medical record from the practice was produced with a date stamp "6 September 1985" and it was shown, by evidence ultimately not challenged by the plaintiff's counsel, that this date stamp related to another patient of the practice also named Eames, that Orgill had been on holiday at the time of the supposed consultation and that the other Mrs Eames had been seen on 6 September 1985 by another doctor. Since it was her case that she had told Re of the opinion Orgill had expressed about the thickening in the breast and that she had told Hand of the opinions expressed by two other doctors - Orgill and Re - it is clear that the plaintiff was in grave danger of failing as against all three defendants as regards what was at all events her primary case, if the jury were not satisfied that Orgill had advised her as she alleged.
Cross-examined, the plaintiff said that she had absolutely no doubt that she saw Orgill on 6 September 1985 and told him of the change in her breast; that she had used clinical notes obtained by her solicitor from the defendants to fix the date of 6 September 1985 because of the date stamp on them; that the clinical notes had been altered by deleting the reference she had seen to "slight breast tissue thickening" when Langenegger had shown them to her; that it was apparent that the clinical notes produced in court had had nothing erased from them in the space opposite the date stamp 6 September 1985; that each side of the page must have been re-written by way of reproducing a record and fraudulently omitting that entry; that this meant that various people must have been parties to the fraud, since the handwriting of several persons was on that page; that these included Dr Stoney, who had formerly been her general practitioner but had since become a specialist anaesthetist; that she had looked for but been unable to find any account for the consultation on 6 September 1985 and could not produce any record of a Medicare rebate in respect of such an account; that she had seen Orgill on 6 September 1985 because her pap smear was about due and that she had had a pap smear on that date; that the medical records of Orgill's practice and other documents showed that whenever she had a pap smear the clinical notes recorded it; that there was always a written report from the pathologist on the smear and that she always received an account direct from the pathologist; that the clinical notes contained nothing to show that she had had a pap smear on 6 September 1985 or on 2 January 1986 (when it was admitted by the defendants she saw Orgill) and that there was no pathologist's report or account in respect of a pap smear done on either of those two dates; that she could not be sure at which consultation she had discussed breast thickening with Orgill but that it must have been either 6 September 1985 or 2 January 1986; that she could not remember his giving her any advice about her breast on 2 January 1986; that she was sure she had told Re that Orgill had advised her about breast thickening; that she was sure that Langenegger had shown her medical records, Langenegger saying, "I'm not showing you this", and that she had read in them "slight breast tissue thickening"; and that she had not asked Langenegger for a copy of that entry.
Orgill's evidence was that he did see the plaintiff on 2 January 1986. He produced his notes of that consultation, showing complaints of back pains and that no treatment was ordered. He swore that she had not complained of ropiness or thickening in the breast on 2 January 1986; that if she had done so he would not have told her there was nothing to worry about - instead he would have recorded her complaint and made an examination and noted his findings on examination.
Re's evidence was that she saw the plaintiff on 4 February 1987; she produced her notes the plaintiff came for a pap smear, which she performed, coupled with what was for her (Re) the usual breast examination. Her notes contained an entry "breasts - slight thickening right breast, but no masses." This, she said, was not a description of "ropiness" or "bumpiness"; it did not concern size or anything observable as a change of contour; it meant a slight change in density which she took to be hormonal - women's breasts tended to feel a little denser at certain times of the month. Had she found something such as the plaintiff had described in her evidence she would have noted it and made a diagram and would not have described it as slight thickening. The plaintiff had not told her anything about Orgill's opinion. She regarded what she found on examination as normal and may well have told the plaintiff there was nothing to worry about. She saw the plaintiff again on 7 December 1988. She had no independent recollection of that consultation. She again produced her notes. These contained a tick for each breast, showing that she had examined them and found them both entirely normal. She did a pap smear. The plaintiff did not, at either consultation, tell her she had complained to Orgill about a breast abnormality or of what Orgill had said about it.
Hand's evidence was that she saw the plaintiff once only, on 18 June 1990, and gave her a pap smear. She produced her notes. The tick for breasts showed that no abnormality was detected on examination. A slight thickening or ropiness would have been recorded had it been detected. The plaintiff had not said she was worried about her breasts or anything about complaining of an abnormality to Orgill and had not requested a mammogram.
So much for the conflict of evidence about what the plaintiff had told the three doctors and what they had told her about her condition.
The notice of appeal contains nine numbered grounds but, having regard to the numerous lettered paragraphs into which a number of grounds are divided, the grounds are in fact much more numerous. They allege many misdirections and non-directions about matters of both law and fact, and other irregularities in the trial. No exception was taken at the trial to what are now said to be gross and incurable deficiencies in the charge. It may, I think, be said of the notice of appeal generally that it has been drawn with a disregard for the actual conduct of the trial, including a disregard of what was later done in the course of the trial by way of curing possible irregularities. In what follows I shall not identify the grounds of appeal by number or letter.
This morning plaintiff's counsel abandoned many of the grounds of appeal, including the allegation of lack of balance in the charge. Senior counsel for the plaintiff, Mr Meldrum, who did not appear below, and who has argued the case, if I may say so, most helpfully, put in the forefront of his submission the proposition that the judge had misdirected the jury about the plaintiff's evidence on whether she had raised with Orgill the question of a possible abnormality of her right breast. He referred to the three questions and answers in the plaintiff's evidence-in-chief at p.44 of the transcript which I set out a good deal earlier, and which I shall call "the particular passage". The judge, in the course of a most extensive summary of the evidence in his charge, read the particular passage. Then he went on to deal with the plaintiff's evidence of her consultation with Orgill on 2 January 1986, when the foreman intervened and asked for clarification of whether complaints had been made to Orgill about breast thickening. The judge then said this:
"Yes, I will read it again. 'Do you remember anything that you said to him in relation to the thickening?' I will do the whole lot. 'Was anything said at this consultation by you in relation to what - that what you call ropiness?' And the answer didn't respond to that, because it said, 'Dr Orgill told me not to worry about it, just slight breast tissue thickening'. You see, she is asked whether 'you said anything', and she responds by saying he said something, do you follow me? I will repeat it again. 'Was anything said at this consultation by you in relation to that what you call ropiness?' Answer: 'Dr Orgill told me not to worry about it, it was just - just slight breast tissue thickening'. Then she is asked the next question: 'Do you remember anything that you said to him in relation to the thickening?' Answer: 'I was surprised that the breast extended up that far. I always thought that the breast was just the fullness. I never realised that breast tissue does extend a little further'. Then you get the third question: 'Do you recall - you may not recall - do you recall saying anything to Dr Orgill about the thickening?' Answer: 'Not that I recall, no'. Do you want it again or are you content with that?"
The jury evidently intimated that they were content with that further direction.
As regards the particular passage, the plaintiff can derive no comfort from the fact that the first of the three questions uses the word "ropiness" while the second and third questions use the word "thickening", a fact on which Mr Meldrum relied. More than once the plaintiff's own evidence shows that she did not distinguish between the two terms. For example, two questions put to her by her own counsel, shortly before the particular passage, and the answers, deal with her concern about the "thickening" before the supposed consultation on 6 September 1985. The suggestion made before us that the first question may have been directed, or reasonably viewed by the jury as directed, to what the plaintiff said to Orgill, and that the second and third questions may have been directed to whether the plaintiff said anything further to Orgill after he had mentioned "thickening" to her, was not put in argument to the judge below. The discussion by counsel with the judge in the absence of the jury seems to me to have proceeded on the basis that, in the particular passage, counsel asked in substance the same question three times, without eliciting the reply for which he evidently hoped. Not long after the passages in the charge I have already cited, and in dealing with the plaintiff's cross-examination about whether she had seen Orgill on 6 September 1985, the judge read out a question and answer and added an interpolation:
"Can't recall receiving an account for 6 September 85. Didn't have any record. 'You see, if you're wrong about not having a consultation with Dr Orgill on that day, you obviously didn't tell him about ropiness on the breast on that day. Correct?' 'It may not have been that day.' Perhaps if I interpolate that, the part that you wanted to be re-read to you, she doesn't say that she said anything to Dr Orgill about the ropiness, as you will recall."
The foreman asked the judge to repeat his interpolation, and the judge said:
"Yes. This is the question that was put by Mr Curtain. 'You see, if you're wrong about not having a consultation with Dr Orgill on that day, you obviously didn't tell him about ropiness in the breast on that day. Correct?' Answer: 'It may not have been that day.' You remember the piece of cross-examination that you asked to be repeated, and she was asked what she said to Dr Orgill three times. The first time she answered by saying what he'd said to her, not what she said to him, and then the third time she said she hadn't said anything to him. Remember that bit? So I'm just interpolating that in relation to this question."
During a break in the charge junior counsel for the plaintiff, to whom it fell to argue a number of questions during and after the charge, referred to the judge's reading of the particular passage to the jury and submitted that in other parts of her evidence the plaintiff had sworn that "she had told Dr Orgill of the thickening". (This is one of a number of circumstances showing that the distinction now sought to be drawn by the plaintiff's counsel between the use of "ropiness" in the first of the three questions and "thickening" in the second and third questions was not drawn at the trial. Similarly, the plaintiff's counsel, at p.764, lines 4 and 5, puts a submission which does not draw the distinction now put forward.)
At the trial the plaintiff's junior counsel referred to pp.67 to 68 of the transcript, where this passage appears at the outset of the cross-examination of the plaintiff:
"Mrs Eames, it's your evidence, isn't it, that you went to see Dr Orgill on a date in September 1985, the 6th of September 1985 and told him about an altered change in your breast?---I did.
There's no doubt in your mind about that?---Absolutely no doubt.
Absolutely, it couldn't be wrong?---No."
Counsel complained to the judge that the jury should have been reminded of this evidence. Counsel further submitted that there was nothing inconsistent in the particular passage with the plaintiff's having herself first raised with Orgill a possible breast abnormality, and indeed submitted that it was open to the jury to infer from the evidence of the plaintiff at p.68 of the transcript that she had done so. This evidence was that Orgill was the first doctor who told her that it was slight breast tissue thickening and nothing to worry about.
I do not think the inference in question could be drawn from this piece of evidence, for the plaintiff's evidence was that Orgill examined her breasts, and that examination in itself is just as likely to have provoked his supposed comment as a complaint or enquiry by the plaintiff which led to the examination. But this does not matter, for the judge, after the plaintiff's counsel had raised these points, did in fact tell the jury that an inference might arise from the piece of evidence that Orgill would not say anything about the thickening unless he was asked about it. This was not said by the judge as part of the summary of counsel's submission; it was a statement that the inference might arise and, if it erred, it erred in favour of the plaintiff. In addition, the judge reminded the jury of the evidence given by the plaintiff at pp.67-68. He read the passage in full. In my opinion no error or deficiency has been shown in what the judge told the jury about the plaintiff's evidence on whether she had raised with Orgill the question of possible breast abnormality.
Mr Meldrum really put two submissions in his oral argument. So far I have dealt with the first. The second was that the judge, in charging the jury, failed to deal adequately with the plaintiff's case against each of the three defendants, on the assumption that the jury were not satisfied that she had complained to Orgill of a possible breast abnormality.
I think the defendants are right when they say that this case was essentially fought on the question whether the plaintiff had drawn Orgill's attention at some stage to a possible breast abnormality and he had told her not to worry about it. The statement of claim was amended in the course of the trial, although no written amendment seems to have been made. In the course of the cross-examination of the plaintiff an amendment was made orally by leave so as to allege that the consultation with Orgill took place either on or about 6 September 1985 or in January 1986. The plaintiff's case was essentially that she had complained to Orgill, who had reassured her, and that the two other doctors had been told by her of Orgill's reassurance and had reaffirmed it. The plaintiff's credibility would have been, of course, most seriously impaired if that case of hers had not been accepted.
The judge's charge concentrates on the principal issues, and the way in which the plaintiff's case was put and the defendants put their cases explains and justifies the approach taken by the judge in his charge in concentrating on what the parties treated as the main issues of fact and, accordingly, concentrating on the evidence bearing on those issues. Most of the criticisms made of the charge in the notice of appeal fail to have regard to the conduct of the trial. The principal issues of fact on which the case was fought were clear and simple and the judge was not obliged to give the jury the directions now suggested.
As regards Orgill, Mr Meldrum submitted that, even if the jury were not satisfied that the plaintiff had made the complaint to him, they might be satisfied that he had in fact examined her breasts and noticed something about the right breast which caused him to reassure the plaintiff, and that the reassurance was negligently given. I must say that on the materials before us - which do not include counsel's final addresses - it is extremely doubtful whether the plaintiff sought to persuade the jury that Orgill had been negligent if the jury were not satisfied that the plaintiff had raised with him her concern about her right breast. Be that as it may, the submission of the plaintiff's counsel below, in the course of dealing with another matter, shows that, as regards the argument in the absence of the jury, the only suggestion put by counsel to the judge of a case against Orgill in the absence of a complaint to him was the suggestion that on 2 January 1986, in the consultation which admittedly took place, he decided to give her no treatment, although she may have been suffering from pleurisy. No reliance was placed in this submission on her evidence of her complaint on 2 January of an intermittent ache at the top of the left breast, which supposed condition is not suggested to be related to the cancer in the right breast. I am not persuaded that the plaintiff relied before the jury, as against Orgill, on any alternative case if she failed to prove that she complained to him that her right breast looked abnormal.
As regards Re, Mr Meldrum submitted that, whether or not the plaintiff told her of a complaint allegedly made to, and a reassurance allegedly given by, Orgill, the plaintiff had an alternative case against her that she had (as she admitted) found on examination a slight thickening of the right breast - which Re said she thought was hormonal - and did not give appropriate advice. Counsel referred us to expert opinion evidence called by the plaintiff, which, he said, lent support to this case, the evidence of Dr Vaughan, an oncologist, and Mr Buckmaster, the surgeon who performed the mastectomy. He also referred to the evidence of Mr Murphy, a surgical oncologist called by the defendant.
As regards Hand, Mr Meldrum said that even if the jury did not accept the plaintiff's evidence of a complaint made by her to Orgill and of her telling Re and Hand of what Orgill had supposedly told her by way of reassurance, it was open to the jury to find that this defendant negligently failed to detect the cancer.
The submission is that the judge wrongly failed to explain these alternative cases to the jury by way of relating the law to the facts and wrongly failed to marshal the lay and expert evidence bearing on each case against each defendant.
Mr Meldrum accepts that, notwithstanding that the plaintiff was represented by very experienced senior and junior counsel at the trial, no exception was taken to the charge in any of these respects. He also accepts that the tenor of the charge was that the issues which the parties accepted would principally engage the jury's attention concerned the allegation of a complaint made by the plaintiff to Orgill and a reassurance given by him to the plaintiff and mentioned by her to the other two doctors. He also acknowledges that no exception was taken at the trial by his client to this approach.
The judge did leave to the jury what I have been calling the plaintiff's alternative case against Re and Hand. He did not marshal the lay or expert evidence specifically in relation to those cases or say in formal terms how the law applied to the facts. He did, in the course of a brief summary of counsel's addresses, say something very brief about counsel's treatment of those alternative cases. No exception in any of these regards was taken to the charge. A ground of appeal alleging failure to summarise counsel's addresses in a balanced manner has been rightly abandoned. I think that by their conduct the plaintiff's counsel accepted - no doubt rightly - that the conduct of the trial generally and the addresses and the judge's charge adequately equipped the jury to deal with what had been put forward by the plaintiff's counsel very much as a second string to their bow. It would be quite wrong for us now to say that the trial miscarried in this respect. Mr Meldrum submitted that the charge was incurably bad because of the suggested defects and that a discharge of the jury was the only satisfactory course. Of course, no such suggestion was made below.
I have not dealt in terms with every ground of appeal which has not been abandoned. I have dealt with such of them as were argued orally. I have in addition considered what was said in the plaintiff's written outline of submissions and recorded there concerning the other grounds which are still extant.
I am not persuaded that this trial has miscarried in any way and I would dismiss this appeal.
CHARLES, J.A.:
I agree.
BATT, J.A.:
I, too, agree.
BROOKING, J.A.:
The appeal is dismissed with costs.
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