Finch v Rogers - [2004] NSWSC 39

No judgment structure available for this case.

CITATION: Finch v Rogers [2004] NSWSC 39 revised - 13/02/2004

HEARING DATE(S): 10/11/03-14/11/03
17/11/03; 19/11/03-20/11/03

JUDGMENT DATE:
13 February 2004

JURISDICTION:
Common Law Division
Professional Negligence Lst

JUDGMENT OF: Kirby J

DECISION: Verdict for the plaintiff, with costs.; Parties to agree on calculations based on findings in judgment.

CATCHWORDS: Professional Negligence - breach of duty by doctor - causation of damage - two views accepted by profession as to treatment - whether loss of chance - proportion of worst case

LEGISLATION CITED: Civil Liability Act 2002
Motor Accidents Act 1988

CASES CITED: Chappel v Hart (1998) 195 CLR 232
Bolitho v City and Hackney Health Authority [1998] AC 232
Malec v J C Hutton Pty Limited (1990) 169 CLR 638
Naxakis v Western General Hospital & Anor (1999) 197 CLR 269
Watts v Rake (1960) 108 CLR 158
Ruddock v Taylor [2003] NSWCA 262
Southgate v Waterford (1990) 21 NSWLR 427
Dell v Dalton (1991) 23 NSWLR 528
Van Gervan v Fenton (1992) 175 CLR 327
Mortimer v Burgess (unreported, 16.5.97, NSWCA)

PARTIES :
Andrew Robert Finch (Pl)
Dr John Rogers (Def)

FILE NUMBER(S): SC 20346/02

COUNSEL: G Segal (Pl)
I G Harrison SC/Ms J Lonergan (Pl)

SOLICITORS: Maurice Blackburn Cashman (Pl)
David Ian Brown (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DAVID KIRBY J

Friday 13 February 2004

20346/02 Andrew FINCH v John ROGERS
JUDGMENT

1 KIRBY J: Andrew Finch (the plaintiff) claims damages against Dr John Rogers, a urologist (the defendant). Breach of duty is admitted. Mr Finch, in various ways, is now disabled. The issue is whether his disablement was caused by the defendant's breach of duty.

Background

2 Andrew Finch was born on 10 July 1974. He grew up in Armidale, attending local schools. He was the oldest of three children. His father is an accountant. He showed early promise in music. He began piano lessons in 1982 at the age of eight. His teacher was Ms Julee Andrews. She remained his teacher for the next decade as he passed through the grades (grades 1 to 8). She described him as a talented student who worked very well.

3 Mr Finch's interests were not confined to the piano. He also played the clarinet and the saxophone. He enjoyed composition. At high school he was part of the school orchestra. He also played in a school band and ensemble. He was asked to teach another student the saxophone, which he did and enjoyed. One of his school teachers, Mr Michael Irik, described him as a "fine musician", "a natural". Mr Finch received a number of awards for music.

4 Mr Finch was not a sportsman. His friends tended to be those interested in music. One such friend, Stephen Doherty, gave evidence. Together they formed an ensemble at school, performing locally, and earning up to $100 or $150 a night. In 1991, whilst still at school, Mr Finch undertook work experience in the music department at St Edwards College at Gosford. The head of the department reported to the careers advisor at his school in Armidale in these terms: (Exhibit E)

"It is very difficult to absolutely assess a student's ability or aptitude in the short period of time they are here, however I am pleased to inform you that his ability and aptitude to every situation faced throughout the week was of a high level.

Finally I was very happy with Andrew's manner, and the way in which he conducted himself generally."

5 The plaintiff therefore determined upon a career in music. His father, however, believed that he should have a profession. He resolved therefore to pursue teaching rather than performing. He saw himself as performing occasionally, when opportunities presented.

6 Mr Finch made application to a number of schools of music. His aim was a degree which would qualify him as a secondary school teacher of music. He nominated as first preference the Canberra School of Music, his second, the Newcastle Conservatorium and, finally, the Queensland Conservatorium which is part of the Griffith University. Each application required an examination and audition. Mr Finch was successful in all three. He was offered a place by each school, subject to passing the Higher School Certificate. He was awarded that certificate with a TER of 71.5.

7 Mr Finch accepted the Canberra School of Music. The school was part of the Australian National University. It had links with the University of Canberra, where he could complete a Bachelor of Education, music being the backbone of his degree.

8 However Mr Finch found the adjustment to university life difficult. He was used to the discipline imposed at home, where he was expected to be up by 6.00 am in order to practice. At university he was living in a residential college. There was a busy social agenda. He said he lacked the "life skills and maturity" to ration his freedom, so that he did sufficient work.

9 He also said that he got off to a bad start at the School of Music. Due to a misunderstanding, he arrived two weeks late at the school. The course had already begun. He was presented with a body of work, which he was expected to practice. However, the piano at the residential college was constantly in use in connection with the college's social life. His results that year, and the next year, were poor. Dr Athanasou, a consultant in vocational guidance retained by the defendants, sought access to his academic record. The codes used by the university were obscure. However, Dr Athanasou reconstructed Mr Finch's record in 1995 at the University of Canberra in the degree of Bachelor of Education as follows:

1994	Semester 1	External studies (3 subjects)	Pass
Semester 2	Microeconomics	Withdrew
1995	Semester 1	Music	---
Microeconomics	N (not completed?)
Semester 2	Music	---
Adolescent development	Withdrew
Language and learning	Withdrew

10 At the Australian National University in the School of Music the results were mixed, although somewhat better. Again, quoting from the report of Dr Athanasou, they were reported as follows:

1994	Semester 1	Physics and psychophysics	Pass
Keyboard musicianship	Withdrew
Semester 2	Electroacoustic composition	Distinction
Semester 3	Aural 1	Withdrew
Harmony and counterpoint	Pass
Instrument 1 Performance Piano	Credit
Outline of music history	Withdrew
1995	Semester 1
Semester 2
Semester 3	Aural 1	Grade not clear
Outline of music history	Grade not clear
Instrument 2	Distinction

11 The result was considered unsatisfactory and the plaintiff was therefore excluded from the Australian National University School of Music in February 1996. He nonetheless remained enrolled at the University of Canberra, in the Bachelor of Education degree course. Again, guided by his father, he determined that he would attempt commerce based units.

12 However, Mr Finch found the course dull. His passion was music. He began, moreover, to experience tiredness. He had, throughout high school and university, performed casual work after hours. The closer he got to December 1996 (when the diagnosis of testicular cancer was made), the more difficult he found his workload. His academic record for 1996 was as follows:

1996	Semester 1	Music	---
Concepts and elements of law	Withdrew
Accounting theory & practice	Withdrew
Semester 2	Music	---
Concepts and elements of law	N (not completed?)
Accounting theory & practice	N (not completed?)

Diagnosis and operation

13 On 15 December 1996, or thereabouts, Mr Finch noticed a lump in his right testicle. He went to a local medical centre, which arranged for an ultrasound. The ultrasound was performed on 17 December 1996. It revealed a mass which was thought to be a tumour. Mr Finch was referred to a Canberra specialist, Dr Nugent. His parents, however, believed that he should see somebody in Sydney. He was referred by Dr Nugent to Dr Rogers.

14 Mr Finch first saw Dr Rogers on Thursday 19 December 1996 at his rooms at the RPA Medical Centre at Newtown. Dr Rogers reviewed the scrotal ultrasound. It suggested testicular cancer. Testicular cancer is a rare disease, afflicting about five men in one hundred thousand. One form of that disease, non-seminomatous testicular cancer, tends to occur in men in their twenties. Mr Finch was then 22 years.

15 Dr Rogers ordered blood tests. If there is a tumour present it produces chemicals that can be measured in the blood by tumour markers, specifically:

16 The test results were elevated, confirming the presence of the tumour. They were reported as follows:

17 Dr Rogers advised an operation as a matter of some urgency, removing the testicle (an orchidectomy). Mr Finch accepted Dr Rogers' advice. The operation was performed that evening. No complaint is made concerning the operation. The right testis showed an infiltrating embryonal cell carcinoma. There was prominent lymphatic invasion, and some early invasion of the surrounding capsule. The left testicular biopsy showed no abnormality.

Post operation

18 Mr Finch remained in hospital for two days. He then returned to Armidale with his parents. He was told to have a CT scan. Nothing was said about the need for further blood tests. The CT scan was undertaken on 24 December 1996 by Dr Barter. Dr Barter reported in these terms:

"No lymphadenopathy was evidenced in chest, abdomen or pelvis."

19 Dr Rogers went on leave on Friday 20 December 1996. He returned on Thursday 16 January 1997. Before going on leave, he made arrangements to see Mr Finch on 17 January 1997. The plaintiff's father was required to conduct an audit at Nambucca between 17 and 23 January. The family thought that it would be "nice" to have a holiday together. Accordingly, the appointment with Dr Rogers was rescheduled for 23 January 1997. Nothing had been said to Mr Finch suggesting urgency in respect of the follow-up consultation.

Further consultation with Dr Rogers

20 Mr Finch saw Dr Rogers on 23 January 1997. He brought with him the CT scan of 24 December 1996. Dr Rogers examined the scan. Whilst acknowledging the difficulty in determining whether the lymph nodes were within the normal range (where any change is likely to be minor) Dr Rogers was suspicious of the area in the inter-aorta caval region. He made arrangements for a further urgent CT scan. Dr Harding-Smith, radiologist, provided a report the same day, which included these words:

"There are slightly enlarged aorta-caval lymph nodes that may have increased a little in volume compared with the scan of 24 December 1996."

21 At the same time, Dr Rogers arranged for further blood tests of the tumour markers, which were reported the next day as follows:

(a) Beta HCG of 3307; and
(b) Alpha feta protein of 33.9.

22 When Dr Rogers again saw the plaintiff on 24 January 1997, he told him that the tumour markers were very high. He said that he would need urgent chemotherapy. He provided a referral to Associate Professor Michael Boyer. Associate Professor Boyer is the head of the Department of Medical Oncology at the RPA Hospital. Arrangements were made for the plaintiff to see Professor Boyer that afternoon.

23 Dr Rogers told Mr Finch that the chemotherapy treatment may render him sterile. He would therefore need to bank sperm before the treatment began. He was directed to a person "down the corridor" to discuss that issue. That person, in turn, referred Mr Finch to the King George Hospital Fertility Laboratory. Mr Finch, however, said that he was "shell shocked". He had come to Sydney for a routine check-up. Suddenly he had been told that he had cancer and would require urgent treatment. He simply could not produce sperm before the time of his appointment with Professor Boyer arrived.

24 In the afternoon consultation on 24 January 1997, Associate Professor Boyer made the following comment to Mr Finch:

"I'm going to treat you with three or four cycles of chemo. I haven't decided yet."

25 Mr Finch was told of the side effects of the drugs which would be used. They are ototoxic, that is, they may damage hearing. They are also neurotoxic, that is they may cause damage to the peripheral nervous system and especially the fingers and feet. Professor Boyer said that Mr Finch should harvest sperm in the following week on Monday, Wednesday and Friday. The cycle of chemotherapy would begin on Monday, 3 February 1997.

26 The plaintiff attempted to produce sperm in the following week. Again, he was unsuccessful. He went to Dr Rogers' rooms without an appointment late on the Friday. Dr Rogers saw him. He prescribed a sedative to help him relax. Mr Finch described himself as "extremely stressed". Over the weekend before the commencement of chemotherapy he had some success, although it was limited. When he saw Professor Boyer on Monday 3 February he asked whether he could have more time. Professor Boyer responded with these words:

"No, you can't do that. This is life threatening. Its getting too late. We must start chemotherapy now."

27 Professor Boyer, in this consultation, also said that Mr Finch would need four cycles. On Friday 31 January 1997, prior to the first cycle, the plaintiff's tumour markers were measured as follows:

(a) Beta HCG of 5458; and
(b) Alpha feta protein of 35.7.

The course of chemotherapy

28 Between February and May 1997 Mr Finch underwent four cycles of chemotherapy at the Oncology Clinic within the RPA Hospital. Each cycle involved three weeks. The chemotherapy drugs were administered each day during the first week. There was then a break of two weeks before the next cycle began. During that break, and shortly before the next cycle, there were blood tests. The tumour markers were monitored to ensure that they were falling, and that the drugs had been effective. Any side effects experienced by the patient were discussed before embarking upon the next cycle.

29 Mr Finch, in accordance with this regime, underwent chemotherapy according to the following timetable:

1st Cycle	03.02.97 to 07.02.97
2nd Cycle	24.02.97 to 28.02.97
3rd Cycle	17.03.97 to 21.03.97
4th Cycle	07.04.97 to 11.04.97

30 The blood tests taken between each cycle demonstrated that the drugs were dealing effectively with the tumour. The tumour markers were recorded as follows:

Date
(a) Beta HCG

(b) Alpha feta protein

21.02.97
24

8

24.02.97
21

4.6

17.03.97
1

2.4

24.03.97
< 1

7

07.04.97
< 1

2.4

18.08.97
< 2

1.1

31 In 1997 there were broadly two chemotherapy regimes administered to patients with testicular cancer. They each used the same drugs, known by the acronym BEP, the drugs being:

B leomycin

E toposide

Cis P latinum

32 The source of one regime (variously known as the North American or Indiana BEP) was the Department of Medicine at Indiana University. It was a major centre for dealing with testicular cancer in the United States. The other regime was formulated in the United Kingdom, where there were two major centres for dealing with testicular cancer, the Royal Marsden Hospital and the Southampton Hospital (English BEP). The regimes differed from each other in the number of cycles and the dosage of drugs administered in the course of each cycle. In the North American or Indiana regime, the cisplatinum was spread over five days. The etoposide was also spread over five days and the bleomycin was given weekly. Further, and this is a matter of some importance in the context of this case, three cycles rather than four were administered to those patients who could be characterised as having a "good prognosis".

33 The English regime, on the other hand, typically used four cycles. Etoposide was administered over three days, and cisplatinum on one day only. Bleomycin was given once per cycle.

34 It appears that Professor Boyer followed the Indiana BEP regime, which was given to Mr Finch. By the time chemotherapy began, Mr Finch could not be characterised as a good prognosis patient. Accordingly, four cycles were administered.

Breach of duty

35 It is instructive to identify precisely the breach of duty by Dr Rogers. McHugh J in Chappel v Hart (1998) 195 CLR 232 said this: (at 242)

"Proof of a cause of action in negligence or contract requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered. In civil cases, causation theory operates on the hypothesis that the defendant has breached a duty owed to the plaintiff and that the plaintiff has suffered injury; but causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty. The existence of the relevant causal connection is determined according to common sense ideas and not according to philosophical or scientific theories of causation."

36 The statement of claim against the defendant was issued on 13 August 2002. Accordingly the issues, including the issue of causation, are to be determined by reference to the Civil Liability Act 2002.

37 What, then, was the breach of duty? Testicular cancer is an aggressive form of cancer. Removal of the testicle may eradicate the cancer if it is confined to the testicle. If, however, it has metastasised, that is spread elsewhere in the body, then removing the testicle will not deal with its presence elsewhere. Hence, after orchidectomy, the patient must be monitored, preferably by an oncologist (Professor Levi T.206). In the absence of such monitoring, there is a foreseeable risk that the tumour, which has spread beyond the testicle, will grow. The patient, therefore, should have a CT scan, as was done in this case. He should also have blood tests, preferably twice weekly, because the changes are so rapid. If the tumour is confined to the testicle, the chemicals released by the tumour will fall. The fall can be measured according to the rate at which the chemicals decay, that is, their half life. The half life of the tumour marker Beta HCG is 18 hours. So the patient, after operation, is "watched", their markers being checked regularly to determine a trend. Where the markers do fall, signifying that the tumour was confined, approximately half such patients may never need further treatment (Dr Vaughan T.70).

38 If the tumour markers do not fall, or fall and then rise, it may be inferred that the disease has metastasised elsewhere in the body. Chemotherapy should begin as soon as possible. Dr Vaughan likened such a situation to a medical emergency, rather like a car accident. The sooner treatment begins the better. The longer the delay the worse the prognosis.

39 Here Mr Finch was not referred to an oncologist. Blood tests were not arranged after the operation. The tumour markers were not monitored in the period between the operation (19.12.96) and the appointment with Dr Rogers on 23 January 1997. The spread of the cancer beyond the testicle was therefore not discovered until the blood test results were returned on 24 January 1997. The tumour in Mr Finch's body grew unchecked. Treatment by way of chemotherapy was delayed.

40 What were the consequences of the breach? I will leave aside, for the moment, the significance, if any, of the growth of the tumour, which was the direct consequence of the breach (although arguably a consequence later redressed by a successful course in chemotherapy). I will also leave to one side the anxiety occasioned to Mr Finch through the late discovery of his situation. The substantial issue, which occupied much of the hearing, concerned the consequences, if any, of delaying chemotherapy. That issue gives rise to the question: What would have happened to Mr Finch had there been no breach of duty? When, without breach, would chemotherapy have begun? Would the chemotherapy administered have been any different had it been commenced on time?

41 The plaintiff says that but for the breach he would have only required three cycles of chemotherapy, not four. He also says that the disabling side effects that now afflict him are the consequence of the fourth cycle. The defendant says the plaintiff required, and probably would have been given, four cycles, even if there had been no delay. He further says that the disabling consequences have not been caused by the fourth cycle. Whatever disabling effects there may be, they are, in the defendant's submission, the product of all four cycles, not just the last.

The probable commencement date of chemotherapy

42 Let me deal with the first of these issues: When would chemotherapy have begun had there been no breach of duty? The need for despatch in the commencement of chemotherapy must accommodate a number of other demands. First, the regime presupposes an orderly cycle. Each cycle begins on Monday, so that treatment should begin on the first available Monday. Secondly, the drugs are likely to render the patient sterile. Those effected are usually young men. It is considered reasonable to provide an opportunity to harvest sperm. The patient, at the same time, has the chance to come to terms with the diagnosis and the proposed treatment (Professor Levi T.206). An audiogram may also be undertaken in order to establish the base level of the patient's hearing.

43 Thirdly, there was a difference of opinion as to whether time should be allowed for the surgical wound to heal before treatment begins. Dr Vaughan said that he would not delay chemotherapy because of an infection in the wound. It was too important, in his judgment, to take advantage of the "window of opportunity" where a patient may be regarded as having a good prognosis, permitting three cycles of chemotherapy rather than four. The chemotherapy drugs do not reduce the white cell count (and therefore do not inhibit healing) for ten days. Dr Vaughan said that in respect of a fit young man, with a clean incision, and with the help of antibiotics, that would be ample.

44 Professor Boyer, however, disagreed. He said he would ordinarily not commence chemotherapy in the presence of active infection (T.140). He said he would want to be certain that, with antibiotics, the wound was beginning to heal, and the infection beginning to resolve, before chemotherapy began (T.143). It would be necessary to check the wound for the purposes of forming a view. Professor Boyer said this: (T.143)

"A. ... Delaying chemotherapy by 24 or 48, or even 72 hours to allow a wound to heal, or an infection to resolve, I don't believe has a dramatic impact, even in an aggressive disease. Certainly delaying it for much longer periods of time would be a concern. But I think that one has to regard the safety issues or aspects of this with all seriousness, because infections in patients with cancer who have no white cells are actually life threatening events."

45 On this issue, I prefer the evidence of Dr Boyer. Before chemotherapy could begin there was a need for some evidence that the infection was beginning to resolve.

46 The operation, as mentioned, was on 19 December 1996. Mr Finch then returned to Armidale. In late December 1996 he saw Dr Connor twice about the wound. Dr Connor's handwritten notes in respect of these consultations were produced (Exhibit 1). The first consultation was on 27 December 1996. Mr Finch complained of discomfort at the site of the wound. He was given advice on cleaning the wound and told to see whether it became more painful and inflamed.

47 There was an entry the next day, 28 December 1996. It appears to be in these terms:

"Concerned for purulent discharge from mid scar where slightly infected."

48 Dr Connor prescribed a course of antibiotics. When questioned about these consultations, Mr Finch faintly remembered that there had been an infection. The wound was a bit red when he pulled off the surgical tape. His mother gave evidence that the bandage was removed five or six days after the operation. She noticed the scar was red with slight yellowness around the stitches. She described it as a "redness, not extending, just normal slight infection". The scar healed very quickly once her son took the antibiotics. Within four or five days the redness had gone.

49 There was a further entry in Dr Connor's notes for 2 January 1997. The entry relates to a phone call from Mr Finch. It records that Dr Connor told Mr Finch that he should continue the course of antibiotics to the end. Mrs Finch explained the purpose of that phone call in these terms: (T.157)

50 It is reasonable to infer that the wound had completely healed by 2 January 1997. It is probable that, by Monday 30 December 1996, the infection (with the help of antibiotics) was beginning to resolve. It follows that Monday 30 December 1996 would have been the earliest date that chemotherapy could have begun. It is reasonable to regard that as the probable commencement date, but for the breach. If, for whatever reason, that date were not met, chemotherapy would have commenced (but for the breach) by Monday 6 January 1997.

51 Had chemotherapy begun on Monday 30 December 1996, what would have been the likely level of the plaintiff's serum Beta HCG markers? That is an important issue, although the experts differed in the significance to be attached to it. It is also an issue of some difficulty. As explained by Dr Vaughan, there are missing variables because the markers were not monitored. The beta HCG level before the operation was 79. By 23 January 1997 (the tests ordered by Dr Rogers) it had risen to 3307. On Friday 31 January 1997, shortly before the chemotherapy began, it had reached 5458. Professor Boyer, the treating oncologist, met with Professor John Levi, qualified by the defendant, to prepare a joint report addressing, amongst other issues, the following:

3. At what level would the plaintiff's markers have likely been on 24 December 1996 and 1 January 1997?

We are agreed that the plaintiff's serum beta-human chorionic gonadotrophin would have been approximately 150 IU/L on 24 December 1996, and approximately 300 IU/L on 1 January 1997."

52 The level of the tumour marker, beta HCG, was doubling approximately every seven days. Had chemotherapy begun on 6 January 1997, the likely level, therefore, would have been approximately 600 IU/L.

53 Professor Levi attached great importance to the rate at which Mr Finch's markers were rising. The rate of increase was approximately four times the average for patients with testicular cancer, signifying a very aggressive tumour.

54 Against this background, let me turn to the likely treatment of the plaintiff, had chemotherapy commenced on 30 December 1996 or 6 January 1997. It is a matter in respect of which the experts differed. I will consider these differences and then examine what I believe probably would have happened to the plaintiff.

The view of Dr Vaughan

55 Three oncologists gave evidence, Dr Stephen Vaughan of Melbourne, Associate Professor Michael Boyer, the head of the Department of Medical Oncology at RPA Hospital, and Professor John Levi, Director of Medical Oncology at Royal North Shore Hospital. Each expressed views as to the treatment of Mr Finch's testicular cancer, according to medical practice in early 1997.

56 Dr Vaughan has practised as a specialist oncologist in Victoria since 1982. He spent his sabbatical year in 1997 at the Southampton Hospital, which is a specialist centre for testicular cancer. He said that because it is a rare form of cancer most practitioners encounter few patients. When they do so, they rely heavily upon the literature published by the major centres, Indiana, Marsden and Southampton.

57 Dr Vaughan drew attention to what he described as a seminal study published in 1989 by Dr Lawrence H Einhorn and others from the Department of Medicine at Indiana University. The study was entitled "Evaluation of Optimal Duration of Chemotherapy in Favourable-Prognosis Disseminated Germ Cell Tumors: A Southeastern Cancer Study Group Protocol". Indiana developed what it termed "a prognosis staging system". It classified patients as having a "good", "intermediate" or "poor prognosis", according to certain criteria. The criteria substantially, although not exclusively, depended upon the level of tumour markers, and especially beta HCG. The cure rate of those within the good prognosis group was very high, 95% to 99%. The 1989 study by Einhorn examined whether the same cure rate for good prognosis patients could be maintained if the number of cycles of chemotherapy were reduced from four to three. It found that it could. The study was undertaken because it was recognised that the drugs being administered, as part of the chemotherapy regime, had serious side effects, quite apart from the cost of treatment and the inconvenience to the patient in having that treatment prolonged. One hundred and eighty four patients participated in the trial, where randomly some were given four cycles and others three. The conclusion of the study was as follows: (Exhibit A)

"Approximately two thirds of all patients requiring chemotherapy for disseminated germ cell tumors have minimal or moderate extent disease. The deletion of the last 3 weeks of ... (fourth course) significantly reduces the cost, toxicity, and inconvenience. Although the fourth course was not associated with any episodes of sepsis or other life-threatening toxicity, there was a tendency for increasing anemia, lethargy, anorexia, nausea, and vomiting, which was most pronounced with the fourth course. Therefore, three courses ... is now the preferred regimen for favorable-prognosis disseminated germ cell tumors."

58 According to Dr Vaughan, the influence of that paper on oncological practice was profound (T.75). There was still uncertainty concerning the optimal number of cycles for English BEP. However, for those who followed the Indiana regime, such as that administered to Mr Finch, the position, according to Dr Vaughan, was clear. He said this: (T.72)

"... Now, this patient had Indiana BEP, five days of etoposide. So in his case I think it has been pretty clear since 1989, the early nineties, that for good prognosis disease if you gave them Indiana BEP with the five days of the E drug, that was as good as giving four and less toxic, of course."

59 In Dr Vaughan's view the only uncertainty in oncological practice in Australia in 1997 concerned English BEP, and perhaps the efficacy of English BEP compared to the Indiana regime. In cross examination Dr Vaughan said this: (T.85)

60 The specific facts in Mr Finch's case were put in cross examination to Dr Vaughan: (T.100)

61 The reference to "Horwich" is a reference to a book Dr Vaughan suggested was a standard text, "Testicular Cancer, Investigation and Management" 2nd ed (1996), edited by Alan Horwich. Dr Vaughan said that by 1997 most practitioners, including himself, followed the Indiana regime. It was the regime used by Professor Boyer to treat Andrew Finch. The text in 1996 said this in respect of that regime: (Exhibit B)

"19.12 Standard Management of Germ Cell Tumors at Indiana University.

... standard management should include prompt initiation of combination chemotherapy with standard BEP for a planned three cycles of treatment for patients with good risk features and four courses for those with more advanced disease."

62 It was put in cross examination that, even without delay, four cycles in 1997 was standard treatment, and three cycles represented a minority view. Dr Vaughan responded as follows: (T.103-104)

"A. The first thing is that the patient should have had chemotherapy within a week or ten days of the orchidectomy and at that stage, given the beta HCG of about 70 and the other factors, standard treatment in all the books, general articles, was three cycles of Indiana BEP. I don't see how you could hold another view based on the literature we have referred to. The paper in '89, there was review articles. That was what the major centres who we rely on were doing. If you are going to do something other than three cycles of Indiana BEP for good risk disease you weren't doing what the major centres were recommending, and it is not what I did."

63 Elsewhere, Dr Vaughan gave the following answers in cross examination: (T.105)

64 The suggestion made by Einhorn and others in 1989 was dependent upon the patient being classified as having a good prognosis. There had been differences between major centres in the classification of patients within prognostic groups. Sometimes these differences made it difficult to compare the results of one study with another. To address that problem, an International Germ Cell Collaborative Group was formed in 1995. It formulated provisional criteria for each prognostic group. The group published the final criteria in the Journal of Clinical Oncology in February 1997. Professor Levi, in an article published in 1998 ("Management of Germ Cell Carcinoma: State of The Art"), helpfully summarised the criteria as follows, referring to the stage where the disease had passed beyond the lymph nodes: (Exhibit J)

"For patients with stage 3 disease, an international prognostic classification has been developed following a meta-analysis of nearly 6000 patients from international clinical trials. This prognostic classification is determined by three factors: the level of tumour markers; presence or absence of non pulmonary visceral metastases; and presence or absence of a mediastinal primary site. Three prognostic groups can then be defined."

65 Professor Levi added the following in respect of good prognosis patients:

"Good prognosis patients are those with low tumour markers, no mediastinal primary site and no non pulmonary visceral metastases."

66 The February 1997 publication of the final criteria included the following statement: (Exhibit E: Journal of Clinical Oncology, Vol 15, No 2, p 601)

"The degree of elevation of the serum tumor markers LDH, AFT, and HCG immediately before chemotherapy has a crucial role in defining outlook, and has a heavy influence on our proposed classification for NSGCT. Assessment of the degree of marker elevation proved to be the most important factors, in terms of patient numbers, for allocating patients to prognostic groups."

67 In respect of the tumour marker beta HCG, good prognosis was defined as being below 5000. Dr Vaughan said this: (T.72-73)

"A. According to the internationally agreed system, 5,000 is the cut-off.

68 It was Dr Vaughan's view, therefore, that had there not been delay, had Mr Finch's chemotherapy commenced at the time when his beta HCG markers were either 300 or 600 (supra paras 51-52), then, under the Indiana regime, as administered by Professor Boyer, probably three cycles would have been given, provided that the patient responded well. On that issue, having been reminded of the levels of the tumour markers before and after chemotherapy, Dr Vaughan said this: (T.77)

"A. What that demonstrates is, this tumour is very sensitive to chemotherapy, and it is behaving as though the first dose of chemotherapy has killed almost all of it. I think the initial level is probably higher than 5,900 because that was done the second day of chemo. The level might have been 8 or 9,000 on the day of chemo, and I would expect it to drop quickly. We don't have a measurement. It goes something like 5,000 before the chemo of about 6,000 on the second day. It might have been 7 or 8,000 on the day of chemo. I expect it to halve. Without doing the calculations, going from about 5,000 to 24 in 18 days, I think is, that is a good response."

The view of Professor Levi

69 The view of Professor Levi was, in some respects, quite different from that of Dr Vaughan. Professor Levi is a consultant physician. He has specialised for the last thirty two years in oncology. He is the Clinical Professor of Medicine at Sydney University and has been since 1994. He is the Director of the Department of Medical Oncology of Royal North Shore Hospital. In that capacity he sees a hundred patients a week with various forms of cancer. He may see fifteen patients a year with testicular cancer, that being a rare form of cancer. He completed his thesis for the degree of MD on germ cell cancer (that is, testicular cancer). He has published widely on germ cell cancer (and other subjects). He has participated in various international committees concerned with testicular cancer.

70 In the context of the chemotherapy regime known as Indiana BEP, given to the plaintiff, Professor Levi differed from Dr Vaughan on two issues:

· First, Professor Levi said that, in 1997 there was uncertainty as to the efficacy of three cycles of chemotherapy rather than four. Four cycles remained the standard, and three cycles, in certain settings, was very much a minority view.

· Secondly, whatever the uncertainty in oncological practice in 1997, the plaintiff was never a candidate for three cycles. Because he had a particularly aggressive form of testicular cancer, he required four cycles to effect a cure.

71 Dealing with the first of these issues, Professor Levi pointed to two areas of uncertainty which made the practice of Indiana University, as described in the Einhorn study of 1989, a minority view. In the first place, it was fundamental to the suggestion that three cycles were as good as four that the patient should be capable of being characterised as "a good prognosis" patient. Although Indiana University specified its criteria for a "good prognosis patient", there were differences between research centres in the classification of prognostic groups. That issue was addressed by the International Forum of 1995 which published draft guidelines. The draft, with some revisions, was finally published in 1997. Once published, the international classification (of "good", "intermediate" and "poor" prognosis patients) was gradually absorbed into clinical practice. That process took time.

72 The other area of uncertainty concerned what Professor Levi described as the limited nature of the Einhorn Indiana study. It involved one hundred and eighty four patients. Plainly the greater the number of patients the higher the level of confidence in the published conclusion. It was precisely because of an absence of confidence that, between 1995 and 1998, a further British/European study was undertaken. The study involved eight hundred patients. The results were published in March 2001 in the Journal of Clinical Oncology ("Equivalence of Three or Four Cycles of Bleomycin, Etoposide, and Cisplatin Chemotherapy and of a 3- or 5- Day Schedule in Good-Prognosis Germ Cell Cancer: A Randomized Study of the European Organization for Research and Treatment of Cancer Genitourinary Tract Cancer Cooperative Group and the Medical Research Council") (Exhibit 4). That study affirmed the conclusion of a decade before in the Einhorn study of 1989. The conclusion was in these terms:

Conclusion

:

73 Professor Levi therefore stated the following view, speaking of 1997, when decisions were made concerning the treatment of Mr Finch (report 23.01.03):

"Standard chemotherapy would be 4 cycles of cisplatin, etoposide and bleomycin. I also indicated that there is a minority view that in some settings 3 cycles of chemotherapy may be adequate in patients who have achieved complete remission after one cycle of treatment and therefore only require 2 further cycles of consolidation treatment to provide optimum potential for cure. This view is held only in circumstances where complete remission has been achieved after one cycle which in effect means that all markers have returned entirely to normal following the first cycle of treatment."

74 I do not doubt that there was some uncertainty after the Einhorn study, which the British/European study was designed to resolve. However, I do not accept that the view expressed by Dr Vaughan was a minority view in 1997 amongst those who administered chemotherapy according to the Indiana BEP regime. As will shortly emerge, Associate Professor Boyer held broadly the same view as Dr Vaughan (that is, in good prognosis patients, three cycles were as effective as four in terms of cure). I am persuaded by Dr Vaughan that, being a rare form of cancer, most practitioners (unlike Professor Levi) would not have been able to resolve their doubts by drawing upon their experience. They would have turned to the literature. The literature at that time, whether texts such as "Testicular Cancer" edited by Alan Horwich (Exhibit B), or publications such as the Einhorn study itself, suggested, in the context of the Indiana regime, that three cycles were adequate for a good prognosis patient.

The rate of growth of the tumour

75 Let me move to the second difference between the views of Professor Levi and those of Dr Stephen Vaughan, namely, the suggestion by Professor Levi that Andrew Finch was never a candidate for three cycles of chemotherapy because he had a particularly aggressive tumour. Professor Levi said this: (report 23.11.01)

"In this context therefore considering the fact that Mr Finch's beta HCG level on 19 December was 79 and post orchidectomy on 23 January 3307, it is my opinion that at no time following orchidectomy would anything less than 4 cycles of cisplatin, etoposide and bleomycin been appropriate therapy. In other words, my estimation even 1 week post orchidectomy would have shown further a rise in the level of beta HCG compared to pre orchidectomy and indicated the appropriate requirement for 4 cycles of BEP chemotherapy."

76 Professor Levi, when giving evidence, elaborated as follows: (T.201-202)

"Q. That was a view you expressed in 2001. Do you still hold that view?
A. I do.

Q. Why do you hold it?
A. For several reasons. Firstly, in the conductive text of this patient's specific malignancy, as indicated his levels clearly rose rapidly. From the time of the operation to remove his testicle, to the time he was seen on 23 January, it had risen at least 35 times. That indicates an approximate double time for his cancer of approximately seven days. That is nearly four times faster than the average doubling time for testicular tumours. It indicates an aggressive tumour in the context of testicular cancer. It indicates that the risk for potential relapse after treatment is higher.

There is good evidence among cancers in general that logically aggressive cancers do respond initially to chemotherapy, but their risk of subsequent recurrence is higher, and relapse is a very bad prognostic circumstance. While it is reasonable to anticipate that a patient of this sort will respond initially to chemotherapy, the potential of subsequent relapse is high. That being the case, in the context of somebody whose marker has risen at that speed, one would consider him to be at the worst level of somebody that might be classified as a good prognosis. Good prognosis disease is a spectrum, and therefore one looks at the individual patient as well as the context of what the markers were at a specific point in time, and recognise that over time those markers have increased rapidly, therefore placing him at a lesser level in terms of potential long-term outcome than someone whose markers have risen much more slowly.

77 Relapse, where it occurs, usually takes place within the first two years. Salvage chemotherapy is then necessary. Salvage chemotherapy is intensive. It involves high dosages of toxic drugs, and has a 5% mortality rate during the treatment phase. The patient is required to spend time in hospital. It is to be avoided. Professor Levi believed, therefore, that treatment should be offered on the basis of providing the best chance of cure.

78 On the other hand, it is recognised that treatment itself involves risks by reason of the severe side effects of the drugs which are administered. A clinical judgment is therefore required, balancing the need for cure and the avoidance, where possible, of disabling side effects.

79 Here, as mentioned, the cut-off between a "good prognosis" patient and one regarded as "intermediate" is, in terms of the beta HCG marker, 5,000 IU/L. One can readily understand that where a patient's beta HCG level approached 5,000, the rate of rise of that marker (and the corresponding rapidity of change in the tumour itself) may suggest that the patient is, in truth, an intermediate prognosis patient rather than good. That, indeed, was the situation confronting Professor Boyer in the case of Mr Finch. When first seen on Friday 24 January 1997, the beta HCG level (on 23.1.97) was reported as 3,307. It was doubling approximately every seven days. By Monday 27 January 1997 (being the first possible day that chemotherapy could have begun), it would have been approaching 5,000. Further, Mr Finch was a young man. There was an issue of harvesting sperm. Mr Finch, with great emotion, which was obviously genuine, gave the following evidence: (T.120)

80 It was reasonable that Mr Finch should have a week to harvest sperm (cf Dr Vaughan T.107). By then, plainly, Mr Finch was an intermediate prognosis patient. On any view four cycles were then required.

81 Mr Finch was in that predicament by reason of the breach of duty. That is, he was approaching the 5,000 cut-off for the beta HCG markers by reason of the delay. However, Professor Levi took the view that, even had the level of beta HCG been much lower, as they would have been on Monday 30 December 1996 (300), or Monday 6 January 1997 (600), he still would not have regarded the plaintiff as "a good prognosis patient". The reason for his view was the rate at which the tumour markers were rising. The rate of change (suggesting a corresponding growth of the tumour) was approximately four times the average. The figures were doubling every seven days compared to an average of about twenty-eight days. Professor Levi said this: (report 23.04.01)

"It is noted that in particular the beta HCG level as of 19 December 1996 was 79 and by 23 January 1997 this level had risen to 3307. A >30 fold rise in 35 days."

82 Dr Vaughan took a different view. The rate at which the beta HCG markers were rising did not determine whether a patient should be characterised as having a good prognosis. Dr Vaughan said this: (T.86)

there is no data anywhere in the scientific literature that I am aware of to show, you know, a whole lot of patients watched without treatment, some going up fast, some going up slow, and what that means is there is no data in the literature

83 Dr Vaughan explained that chemotherapy relies for its effectiveness upon killing rapidly dividing cells. Cancer cells are at their most vulnerable in the process of dividing, that is, as they grow. The paradox is that the more aggressive the tumour, the better its response to chemotherapy (T.76). Slow growing cancers respond less well.

84 The view of Associate Professor Boyer was somewhere between that of Professor Levi and that of Dr Vaughan. Professor Boyer said this: (T.127-128)

85 Professor Boyer said it was one of several indicators as to how best to treat this sort of disease (T.130). He added this: (T.130-131)

86 It would be unethical because once a tumour is detected immediate intervention would be required. It would be unethical to allow the tumour simply to grow without treatment.

87 Professor Boyer, although sharing Professor Levi's belief in the importance of the rapidity of the rise of Beta HCG markers, nonetheless, believed that Mr Finch, soon after surgery, was probably a good prognosis patient and therefore a candidate for three cycles, not four. The cross examination of Professor Boyer included the following: (T.132)

88 Professor Boyer provided the following report in which he identified the way in which he probably would have treated Mr Finch had he presented earlier: (Exhibit E, report 19.03.02)

"Assuming that his serum Beta HCG would have been in the order of 300 at that time, I would have advised treatment with chemotherapy using Platinum, Etoposide and Bleomycin. The choice of treatment would have rested between 3 or 4 cycles of this chemotherapy. On the balance of probability, I would have recommended 3 cycles of treatment. The ultimate amount of treatment given would have depended upon his progress during therapy."

89 Professor Boyer adhered to that view when giving evidence (T.145). Even had chemotherapy been delayed until 6 January 1997, Professor Boyer believed that probably three cycles would have been sufficient (T.146), "sufficient" in that context, meaning sufficient to offer the patient the reasonable prospect of an effective cure.

90 Professor Boyer met Professor Levi on 14 March 2002 for a joint conference, addressing a number of issues. In a report of 15 March 2002, which each signed, they answered one of the questions in these terms: (Exhibit 2)

If repeated serum markers had been taken on 24 December 1996 and I January 1997, and had shown a progressive rise, what would you have done?

We are both agreed that in this situation we would have advised treatment with chemotherapy using cisplatin, etoposide and bleomycin. A minimum of three cycles and a maximum of four cycles of this chemotherapy would have been advised, with the actual number determined based on the response to treatment."

91 On 20 January 2001, the solicitor for the defendant sought from Professor Levi clarification of his view. She posed the following question: (Exhibit 2: p23)

"As I understand it, you consider that four cycles of chemotherapy represented optimum and appropriate treatment for Mr Finch to provide him with the optimum chance of cure. Four cycles should be undertaken as standard treatment to effect optimum outcome. Do you see any tension between this proposition and the jointly expressed opinion of you and Associate Professor Boyer that a minimum of three cycles and a maximum of four cycles of chemotherapy (using Cisplatin and Bleomycin) would have been advised, the actual number determined based on the response to treatment?"

92 Professor Levi responded (report 23.1.03: Ex 2) repeating his view that four cycles was standard therapy, and that three cycles, in some settings, was a minority view. He then said this:

"It was in this context therefore that the jointly expressed opinion of myself and Assoc Prof M Boyer given previously that a minimum of 3 cycles and a maximum of 4 cycles of chemotherapy using cisplatin, etoposide and bleomycin would have been advised with the actual number being determined based on response to treatment. This therefore was to cover all eventualities in which some physicians would accept 3 cycles of chemotherapy as being adequate, if indeed complete remission had been achieved after one cycle. As I have emphasised, this is a very much minority view and it is my firm opinion that 4 cycles of chemotherapy represents optimum therapy ..."

93 That explanation is not entirely satisfying. The question which Professors Levi and Boyer were asked to address, and which they purported to address, was what they would have done, not what the profession would have done.

94 However that may be, the three oncologists who gave evidence expressed different views as to the importance of the rate of rise of the Beta HCG markers. For Dr Vaughan they were not important in determining whether a patient could be characterised as good prognosis. If the Beta HCG were below 5000, and the patient otherwise met the criteria, the patient could be regarded as having a good prognosis. Subject to the patient's response, three cycles could be administered.

95 Professor Boyer, on the other hand, believed the rate of rise was important. However, it was not determinative. A patient such as Mr Finch, with a rapidly growing tumour, would ordinarily receive three cycles if (as here) his response to therapy were positive.

96 Professor Levi, however, regarded the rapid rise of the Beta HCG marker as determinative. Patients such as Mr Finch, although they otherwise met the criteria for a good prognosis patient, should be given four cycles, not three.

97 What was the basis of Professor Levi's view? He gave the following evidence: (T236)

98 The 1999 Einhorn Study, in its definition of "good prognosis patient", did not identify the rate of rise as a relevant criteria. As mentioned, the International Forum met in 1995. It published criteria relating to prognostic groups in 1997. Professor Levi gave the following evidence in relation to that publication: (T224)

276 What, then, would the plaintiff have earned but for injury? I believe that the plaintiff would probably have continued teaching, supplementing his salary by private music tuition and appearance work. His loss of earning capacity should be calculated by reference to the following:

· His net earnings as a school teacher to age 65, assuming a reasonable progression in seniority, supplemented by $120 gross per week (for private tuition and performances).

· Less 30% representing the combination of residual earning capacity and vicissitudes.

· Superannuation allowance in accordance with s16A of the Act.

277 Such an approach is conservative. Had Mr Finch remained a school teacher for life he would, no doubt, have had the prospect of promotion to headmaster, deputy head master and other senior positions, each commanding higher salaries.

278 The parties should calculate and agree, if possible, the actual loss. If agreement cannot be reached, the matter should be listed for further argument, each party preparing and exchanging written submissions as to the matters which are the subject of disagreement.

Order

279 I therefore make the following orders:

1. There should be a verdict for the plaintiff, with costs.

2. The verdict should reflect these reasons, including the following amounts:

Non economic loss	$269,150.00
Out of pocket expenses	$5,057.70
Interest on out of pocket expenses	$253.43
Past economic loss	To be agreed
Interest on past economic loss	To be agreed
Future domestic assistance	$55,000.00
Future medical expenses	$20,000.00
Psychiatric medication	$5,426.01
Loss of future earning capacity	To be agreed

3. In respect of those matters which require calculation, the parties should confer and agree upon the amount in each case. If agreed, a note of that agreement should be sent to my Associate within 14 days, and judgment will be entered for the appropriate sum, plus costs.

4. In the absence of agreement, the parties should exchange written submissions within 21 days and thereafter within a further 7 days approach my Associate to relist the matter.

**********

Last Modified: 02/18/2004

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Finch v Rogers [2004] NSWSC 39

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Chappel v Hart [1998] HCA 55

CITATION:	Finch v Rogers [2004] NSWSC 39 revised - 13/02/2004
HEARING DATE(S):	10/11/03-14/11/03 17/11/03; 19/11/03-20/11/03
JUDGMENT DATE:	13 February 2004
JURISDICTION:	Common Law Division Professional Negligence Lst
JUDGMENT OF:	Kirby J
DECISION:	Verdict for the plaintiff, with costs.; Parties to agree on calculations based on findings in judgment.
CATCHWORDS:	Professional Negligence - breach of duty by doctor - causation of damage - two views accepted by profession as to treatment - whether loss of chance - proportion of worst case
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Act 1988
CASES CITED:	Chappel v Hart (1998) 195 CLR 232 Bolitho v City and Hackney Health Authority [1998] AC 232 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 Watts v Rake (1960) 108 CLR 158 Ruddock v Taylor [2003] NSWCA 262 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 Van Gervan v Fenton (1992) 175 CLR 327 Mortimer v Burgess (unreported, 16.5.97, NSWCA)
PARTIES :	Andrew Robert Finch (Pl) Dr John Rogers (Def)
FILE NUMBER(S):	SC 20346/02
COUNSEL:	G Segal (Pl) I G Harrison SC/Ms J Lonergan (Pl)
SOLICITORS:	Maurice Blackburn Cashman (Pl) David Ian Brown (Def)

Date	(a) Beta HCG	(b) Alpha feta protein
21.02.97	24	8
24.02.97	21	4.6
17.03.97	1	2.4
24.03.97	< 1	7
07.04.97	< 1	2.4
18.08.97	< 2	1.1