Hart v Di Palma
[2007] QDC 377
•28 November 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Hart v Di Palma [2007] QDC 377
PARTIES:
HART
Applicant
v
DI PALMA
Respondent
FILE NO/S:
711/04
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
28 November 2007
DELIVERED AT:
Brisbane
HEARING DATE:
13 November 2007
JUDGE:
Searles DCJ
ORDER:
Plaintiff’s action dismissed with costs to be assessed.
CATCHWORDS:
Medical Negligence
COUNSEL:
Mr D. Keane counsel for the plaintiff
Mr G. Diehm counsel for the defendant
On 17 February 2003 the plaintiff underwent a mastectomy of her left breast in the Cairns Base Hospital. The surgeon was Dr Elston. Ms Hart was referred to Dr Elston by the defendant her GP who extracted a lump from her left breast in his surgery rooms on 5 February 2003. She claims that the defendant was negligent and in breach of his contract with her in his treatment of her and that as a result she has suffered loss and damage including the loss of her left breast. The issues to be determined then are whether the defendant was negligent and/or in breach of contract and if so what damage resulted from any such negligence or breach of contract.
The alleged negligence and breach of contract are said to be constituted by the following acts or omissions:-
(a) Failure by the defendant to earlier diagnose the nature and extent of the lump in the plaintiff’s breast;
(b) Performing the excision biopsy on the plaintiff without informing her of the risks attendant upon such surgery, with the result that any consent of the plaintiff to the surgery was not informed consent;
(c) Performing the surgery in the defendant’s consulting rooms rather than in a hospital;
(d) Performing the excision biopsy in the above circumstances thereby diminishing the plaintiff’s opportunity of having breast-conserving therapy rather than a mastectomy, thereby saving her left breast;
(e) Negligently advising the plaintiff that she had only three months to live from 6 February 2003 unless she had her left breast removed.
The plaintiff says that as a result of the defendant’s conduct she had a mastectomy when breast-conservation surgery may have been available to her. She says further that she has been left with scarring and she endured bleeding during the surgery.
Plaintiff’s case
The defendant was the plaintiff’s general practitioner (GP) from in or around 10 February 2001 to 21 February 2003.[1] The relevant period is from the commencement date to 5 February 2003 when the defendant removed the lump in her breast. That procedure has been variously called an excision biopsy and lumpectomy. Its categorisation is not important.
[1] Exhibit 7 – transcription of defendant’s notes of consultations with plaintiff.
The plaintiff could not recall specific dates of consultations with the defendant which is understandable given the passage of time. What she did say was that she had developed a lump in her breast and had told the defendant about it. She could not detail the number of times she had told him but said that it was quite often and more than twice. She said that when she complained of the lump sometimes the defendant would then examine her breasts but not every time. At one stage and again, she could not remember when, according to the plaintiff the defendant told her it was a fat lump or a blocked milk duct. She said he never once mentioned the possibility of cancer.
She did recall one occasion date unknown, when the defendant gave her a piece of paper to get her “breast squashed”. That refers to a mammogram test which the plaintiff called a “squash me tit test”. She agreed that she had undergone a mammogram test in 1999 and the defendant sometime in 2002 gave her a referral to have another one carried out. She said that that referral was given to her after the defendant examined her breast and found the lump.
The plaintiff at all relevant times worked at sea on a fishing trawler and said she would normally go out for nine days at a time which was the extent of the trawler’s fuel capacity. In early February 2003 the lump in her left breast had grown to such a size that she had trouble lifting the sorting tray and doing other work on the trawler. It was very painful and when next on dry land on 4 February 2003 she consulted the defendant. According to the plaintiff she told him that if he didn’t do something about the lump she would cut it out herself it was so sore. According to the plaintiff the defendant asked her to come back the next morning when he would cut it out. She said he did not advise her that she should get the lump examined by someone else, nor did he suggest a process called a fine needle aspiration whereby a needle was injected into her breast to extract fluid for testing for cancer. She said that the defendant did not tell her that he thought the lump was benign or that it was dangerous. In her words “no, he told me nothing, he just told me to come back in the morning and he’d cut it out”.[2] There was some inconsistency in the plaintiff’s evidence on this issue. When asked whether the defendant had told her that he thought the lump was benign, she twice denied that was said.[3] Later, when questioned in relation to the consultation on 4 February 2003 and asked whether she was concerned that the lump might be a cancer, she said, referring to the defendant, “He said it wasn’t, so, no, not at that stage”.[4]
[2] Transcript pg 23, line 45.
[3] Transcript pg 23, lines 40 to 45.
[4] Transcript pg 28 line 21.
Surgery 5 February 2003
The plaintiff presented for surgery at 7.30 am or thereabouts the following day 5 February 2003 and the defendant removed the lump. During that surgery one or more breast arteries were severed and the plaintiff said there was quite extensive bleeding. The surgery was conducted in the defendant’s consulting room, the only people being present at the outset being the plaintiff, the defendant and the plaintiff’s then partner, Mr Glen Price. The plaintiff said that after the surgery completed and the wound stitched she sat at the defendant’s desk and told the doctor that her wound was pumping. On his instruction she returned to the examination table and the defendant re-opened the wound. At that point she said the defendant asked Glen Price to pass him a clamp from the cupboard and to get another doctor. The defendant’s partner, Dr Catton then arrived and assisted. The plaintiff said she was too scared to move during this process and the sight of the blood obviously distressed her. The surgery was done under a local anaesthetic and the plaintiff was given an antibiotic to combat infection and Panadeine Forte to address the pain when the anaesthetic wore off. The plaintiff said that after the surgery she was given half a plastic cup of water and waited in a recovery room for about half an hour before being collected by Mr Price. She returned home but said she was too weak to stand up and had to crawl around the house to get to the toilet. She said that the nurses from the defendant’s surgery kept ringing her every now and again and telling her to drink water. There was no evidence that she told the nurses of her weakness. Further, her partner Mr Price, did not stay at home with her but went down to the boat to do some work.[5]
[5] Transcript pg 8 line 1; pg 26 line 20 to 50.
Test results
The following day 6 February 2003 the plaintiff visited the defendant to obtain the results of the pathology test on the lump removed. She said that after asking him if he had the results he went to his computer and called up the results. He then told her the lump was cancerous, that the best thing she could possible do at that stage was to get her breast taken off and that, if she did not, she would only have three months to live.
Referral to Dr Elston – Cairns Base Hospital
According to the plaintiff the defendant then telephoned Dr Elston at the Cairns Base Hospital and arranged for him to examine the plaintiff in Cairns.
She said that Dr Elston told her that she could possibly have some only of her breast removed but in that event it was more than likely she would have to have more surgery in the future. She said she believed what the defendant had told her, namely that, unless the breast was removed, she would only live for three months. Because of that, she told Dr Elston she wanted the breast removed. In relation to the alternative surgery involving removal of part only of the breast the plaintiff said Dr Elston told her that she would require chemotherapy and possibly radiation after the surgery. She told him the only place where radiation would be available was Townsville and she couldn’t go to Townsville. She did not tell Dr Elston that the defendant had told her she would only have three months to live if the breast was not removed. She said that had she been told that the lump wasn’t going to kill her she would never have asked Dr Elston to remove her breast. She made that request because she said she believed she had cancer and was dying.
In cross examination the plaintiff denied that she had told Dr Elston that the lump had been present for five to six months. She said that question didn’t come up at all. She denied that Dr Elston had explained to her that if part only of the breast was removed he thought the end result would not look very good.
Subsequent to the mastectomy the plaintiff underwent chemotherapy which was successful so that at the time of the trial she had fully recovered.
Defendant’s case
The defendant’s recollection of events differs markedly in important respects from that of the plaintiff’s. He gave his evidence by reference to his contemporaneous notes made at each consultation and for ease of reference these were typed up.[6]
[6] Exhibit 7
Defendant’s qualifications and experience
The defendant graduated in medicine in 1976 with a Bachelor of Medicine and a Bachelor of Science from the University of Queensland. His first year post graduation was spent at the Cairns Base Hospital as a junior resident and his second and third years post graduation at Royal Brisbane Hospital where he was a general resident in his second year and a general practitioner registrar in his third year. As the GP registrar in his third year he underwent rotation terms in obstetrics, medicine and surgery and obtained a Diploma of Obstetrics.
At the end of his third year he went to Innisfail and set up a sole medical practice which he conducted as such until May 2002 when three other doctors joined his practice. In the course of his career the defendant said that he had gained experience in surgical procedures in the areas of obstetrics, caesarian sections, tumal ligations, ovaryectomies (taking out ovaries), appendectomies, repairing bowels or bladders if injured during surgery, and all minor skin operations such as the removal of cysts and bumps on the skin. Under cross-examination he said that he had to this point carried out about three to four hundred excisions of the skin per annum and about 10 breast excisions per annum, from the commencement of his general practice until the end of the early 1990s. He said that he had conducted other lumpectomies or excisions of the breast in his rooms prior to his operation on the plaintiff.
The defendant said that as of February 2003 he adopted a three stage system of managing female patients presenting with breast lumps. Firstly he would examine the patient. Next, if a lump was detected, he would usually offer the patient a mammogram. Finally, if the patient accepted the suggestion of the mammogram he would usually refer them to the breast clinic in Cairns where the patient could have a mammogram, maybe ultrasound, and/or fine needle biopsy as the clinic saw fit. He said that in the early days prior to the introduction of fine needle biopsies, most of the diagnosis of breast lumps was done by excision biopsies.
Consultations with plaintiff
In the period covered by the defendant’s consultation notes from 10 February 2001 to 21 February 2003, the defendant saw the plaintiff for various conditions unrelated to the plaintiff’s breast lump. In general terms those consultations involved such conditions as damage and lacerations to the plaintiff’s hands, depression, anxiety, ear infections, ear lesion removal, vomiting and fever, treatment and removal of sebacious cysts and osteoarthritis of the hands and feet. The plaintiff was prescribed various anti-depressants and indeed became addicted to benzodiazupine which the defendant assisted the plaintiff in addressing.
Consultations relevant to breast lump
According to the defendant the first occasion that he examined the plaintiff’s breasts was on 28 February 2001 when he found no abnormalities. That same day he detected two cysts on her right labia majora, the outer part of the vagina. He said the breast examination was a routine breast check and not as a result of any complaint by the plaintiff as to a lump.
The second occasion when he examined the plaintiff’s breasts was on 24 July 2002. Again he detected no abnormality. On that occasion however, given that the plaintiff’s last mammogram had been conducted in 1999, the defendant recommended that she undertake another mammogram. He said he usually recommended a mammogram every two years for patients of the plaintiff’s age, and that period had expired since her last mammogram. In addition he said that for women patients of the plaintiff’s age group he usually carried out a breast examination every 12 months. Again, the breast examination on this occasion was not done pursuant to any complaint by the plaintiff of any symptoms in relation to her breasts, but was a routine check-up.
The defendant said that upon recommending the mammogram he wrote out a report in the referral documentation and handed it her. He said she pushed the paper back and said, “No use giving me that because I’m not going to have it anyway”. In short, according to the defendant, she refused to have the mammogram without giving any reasons.
The third and final occasion when, according to the defendant, he carried out a breast examination of the plaintiff was on 4 February 2003 and on that occasion the plaintiff arrived with a specific complaint of a lump in her left breast which she told him had been present for about four or five months. That is consistent with a subsequent letter from Dr Elston her operating surgeon in his letter to the defendant of 11 February 2003 where he said that the plaintiff had told him the lump had been present for about five to six months, slowly increasing in size.
The defendant examined her breast and found a lump on the left outer quadrant of her left breast. He said it felt clinically benign, but told her she needed to have it looked into further. He recommended a mammogram or that she attend the breast screening clinic in Cairns to have that mammogram, so that the lump could be properly assessed. I infer that the discreet reference to the mammogram as opposed to the clinic referred to a mobile clinic which was alluded to by the plaintiff in her evidence when she said in reference to the defendant’s examinations of her breast:-
“Once I think he gave me a piece of paper to get me a (sic) breast squashed, but I was waiting for the cart to come to town” (my emphasis).[7]
[7] Transcript pg 5 line 55; see also pg 20 line 2
He said her reaction to the recommendation of a mammogram was to say she was going away on an extended fishing trip within a week and wouldn’t be back for at least six months, maybe not until Christmas. He told her that whereas from his physical examination the lump seemed clinically benign, it would be stupid for her to go away for six months not knowing whether it was cancerous or not. He said by the time she got back it could be much worse if it was cancerous. According to the defendant the plaintiff said that she couldn’t get to the Cairns clinic as they were busy on the boat, that she wasn’t going anywhere and she was going to sea and that’s all there was to it.
She then asked the defendant whether he would cut the lump out. He told her he couldn’t cut it out because he didn’t know what it was, and that if a biopsy was done, he and the plaintiff would then know what the lump was and could obtain a better decision as to what to do next. She insisted that he cut it out, and he then explained that by doing a needle biopsy which would have to be done in Cairns the true nature of the lump could be ascertained. When she asked him again to cut it out he told her that he did not want to cut it out because he didn’t know what it was, which, according to the defendant the plaintiff replied:
“Well, I’m going out to sea anyway. If you don’t cut it out, I’m going out to sea, you know, and that’s all there is to it. I’m going to go. I don’t care what it is.”
The defendant then discussed with the plaintiff the options of a mammogram and needle biopsy on the one hand and cutting it out on the other. He explained the theoretical risk that any cancer could spread if he was to cut the lump out, but he said she didn’t seem to worry about that. All she wanted was for him to cut it out. Finally, in the face of the plaintiff’s persistence, the defendant agreed to undertake the surgery the following morning at 7:30 am where there was a slot in his bookings resulting from the cancellation by another client.
Having made the decision to excise the lump the defendant said he explained to the plaintiff the risks of the surgery, namely bleeding, infection and the risk of spreading any cancer that was present.
Defendant’s surgery on plaintiff – 5 February 2003
The following day the plaintiff and her then partner Glen Price attended the defendant’s surgery at 7:30 am and the surgery commenced five to ten minutes later. The defendant said that the plaintiff’s breast was small and the lump was very superficial in that, because of the plaintiff’s slim build with little fat under the skin, there was very little fat layered between the external skin and the breast tissues. Because of that, the excision biopsy, as he called it, was easy to do. Mr Keane submitted on behalf of the plaintiff that the defendant had said in evidence that the excision biopsy was an easy procedure but later resiled from that evidence. As I have said, he did say that the particular operation was an easy biopsy.[8] Later Mr Keane put to him that he categorised the removal of a breast lump as an easy excision, but the defendant made it clear that it depended on the type of breast lump, and that in the plaintiff’s case it had been easy because of the closeness of the lump to the surface of the skin.[9] The defendant removed the lump which measured 34 x 20 x 15 mm.[10] The operation was variously described during the trial as an excise biopsy and a lumpectomy. As I said earlier, in my view nothing turns on the description. The defendant did say that normally in such surgery, he would not be seeking to take the whole lump out, but only sufficient tissue to give a good representation to the pathologist. In this case however, he did end up taking out the whole lump.
[8] Transcript pg 99 line 30 – 40
[9] Transcript pg 117 line 52-3
[10] Notice to Admit, paragraph 16
Bleeding
After the lump was removed, the defendant stitched the wound and put a dressing on it, and the plaintiff then moved from the operating table to his desk. The defendant then noticed that there was a bulge under the dressing so he asked the plaintiff to return to the operating bed where he took the dressing off and discovered that the wound cavity was filled with blood causing the bulging in the dressing. He then took the stitches out to locate the source of the bleeding and attached to one artery a set of artery forceps he had opened from their pack. He required another set of forceps and asked the plaintiff’s partner Glen Price to go outside and ask Dr Catton or one of the nurses to come in. He did this, he said, because he had sterile gloves on and he wanted someone else to open the second forceps. In the result Dr Catton came in, got the second set of forceps and attached them to another artery. He then left.
The defendant said the arteries in question were small arteries but even after they were clamped off there was still some oozing coming out of the wound. So he put some gauze by way of a bung into the wound to apply pressure to the wound and arteries causing the latter to seal off. He then left the bottom of the wound open so that the gauze pack could be taken out and to allow the wound to drain.
It was obvious from the plaintiff’s evidence that the sight of the blood caused her concern. That would be a normal reaction in my view, from any person not accustomed on a day-to-day basis to encountering human blood. According to the defendant the amount of blood lost during the surgery was about a quarter of a litre which was about half of the volume of half a litre which donors to the Red Cross blood bank would normally give. Although the plaintiff regarded the events of the morning as quite traumatic, the impression I gained from the defendant’s evidence was that nothing had occurred that had not occurred before during similar surgery and that it was a pretty routine procedure.
The plaintiff returned to see the defendant the following day 6 February 2003 and the defendant removed the padding pack in the wound because the wound had not bled any further. He left the wound open to allow it to drain, intending, in the event that the histology showed a benign lesion, to stitch it up and close the wound. He said that would make the cosmetic result better. That morning the plaintiff complained of vomiting which the defendant diagnosed as a reaction to the antibiotics he had prescribed the previous day. He replaced those with a different antibiotic. On that morning 6 February the defendant had received by fax the pathology results which were also sent to him via his computer. Sadly for the plaintiff the results showed a cancer. The defendant advised the plaintiff of the results and said that she would have to go to Cairns to see one of the surgeons for further treatment which would involve more surgery and possibly getting her breast off. Not surprisingly the plaintiff agreed to this course and the defendant then telephoned the Cairns Base Hospital and spoke to the surgical registrar to arrange an urgent referral to see Dr Elston the surgeon. The defendant denied that he had ever told the plaintiff that, unless she had her left breast removed, she would die within three months. He said that he did not have any opinion on the implications for the plaintiff’s life expectancy at that point, and that seems sensible given that he was referring her on to a specialist for the very purpose of obtaining further advice and treatment.
The plaintiff visited the defendant again on 8 and 10 February when the wound was dressed on each occasion and he said that on 10 February the wound looked good and was healing well.
Conflict between plaintiff’s and defendant’s evidence
Plaintiff
I have difficulty in accepting the plaintiff’s evidence when it conflicts with that of the defendant or others. She frankly admitted to a lack of recollection in relation to specific consultation dates with the defendant which is understandable given the passage of time. However, if one was to accept the plaintiff’s account of her consultations with the defendant, the Court would be asked to accept that the defendant over a period of some two years from February 2001 to February 2003, on an unspecified number of occasions, ignored complaints by the plaintiff of a lump in her breast. By ignored I mean that, according to the plaintiff, the defendant examined the breast on various occasions and told her the lump was a blocked milk duct or fatty tissue, without recommending further tests to confirm that diagnosis. She further asks the Court to accept her evidence that, upon consulting Dr Elston and obtaining his advice she made a decision as to future treatment (mastectomy), based solely or predominantly on the alleged prognosis by the defendant that she would only have three months to live if she did not have her breast removed. That advice was the driver for her decision to have the mastectomy, yet she did not say anything to Dr Elston about the defendant’s life expectancy statement or seek his opinion on the issue. Again, that to my mind stretches credulity. I do not accept that the defendant ever made such a statement to the plaintiff.
I found the plaintiff to be variable in her evidence giving, at times very vague on detail but at other times, when it suited her, to be adamant that something occurred or did not occur. An example of that is her telling the defendant of the presence of the lumps on the occasions he, on her case, ignored her. Another is the defendant’s denial of her statement to him on 4 February 2003 that she was going to sea and could not have a mammogram. There is independent corroboration of that statement in Dr Elston’s letter to the defendant dated 11 February 2003 after the referral by the defendant in which he stated, referring to the plaintiff:-
“She states she had a mammogram three years ago which showed no abnormality. She was unable to have a mammogram on this occasion as to her working on boats and, as your letter stated, that she refused further mammograms.”
Dr Elston was taken to that extract in his evidence and said that the plaintiff’s reference to working on the boat and not being able to have a mammogram was information the plaintiff conveyed to him when he saw her. He recorded in his clinic notes that – “Working on boats. Not able to have mammogram”. This is consistent with the evidence given by the defendant on 4 February 2003 as to why she could not have a mammogram. The plaintiff, in denying that she told the defendant she could not have a mammogram because she was going to sea, relied upon her evidence that from November to March in each year there was no fishing, they were not allowed to put nets in the water or leave the harbour except to go to the slip.[11] That is inconsistent with her earlier evidence that the reason she went to see the defendant on 4 February 2003 was that she “was sick at sea and the lump had gotten that big that I found trouble lifting the sorting tray and stuff like that on the trawler” so that when she was back in town she went to see the defendant.[12] It is clear to me that the work she referred to was temporally close to her visit to the defendant on 4 February 2003.
[11] Transcript pg 34 line 25
[12] Transcript pg 6 line 15
Other examples of the unreliability of the plaintiff’s evidence can be identified. For instance she adamantly denied a conversation with the Cairns Base Hospital nurse who made a contemporaneous record of the plaintiff telling her that she would commit suicide if chemotherapy or radiotherapy was required and the effects were significant, that she intended to decline treatment and party like she always did, that she had on a previous occasion attempted suicide and that her will to live had always been exceeded by her desire to die.[13] In submissions Mr Keane submitted that the plaintiff at that time was in shock and it is true that the records record her saying that, but that only lends support to my view as to the unreliability of the plaintiff’s memory in giving her evidence. Again, in relation to a suspected skin cancer on her right earlobe she conceded that the defendant was concerned that it might be a skin cancer but could not recall being given a piece of paper referring her to a Dr Hertess in Cairns. Her recollection was that the defendant gave her some cream but conceded that she did not go to a doctor in Cairns in relation to that particular complaint.[14] The defendant in his contemporaneous notes and in his oral evidence said that he referred her to the plastic surgeon Dr Hertess for confirmation of the squamous cell carcinoma and excision as Dr Hertess saw fit.[15]
[13] Exhibit 2, Part G pg 88; Transcript pg 32 and 33
[14] Transcript pg 27 line 20
[15] Exhibit 7; Transcript pg 92 line 1
Defendant
On the other hand the defendant presented to me as a very thoughtful and careful person who made contemporaneous notes during consultations with the plaintiff. To my mind the conduct the plaintiff seeks to attribute to him, namely ignoring her complaints about a lump in the breast is completely at odds with the standard of care rendered by the defendant to the plaintiff during the period of their professional relationship as evidenced by his evidence and notes. I reject her evidence on that issue.
I do not suggest that the plaintiff set out to actively mislead the Court. I think rather she simply cannot recall any helpful detail of the circumstances of the relevant consultations with the defendant. That is not surprising given her evidence that she was at the relevant time a binge drinker and the user of illicit drugs marijuana and speed.
For the reasons I have outlined, where the evidence of the plaintiff conflicts with the evidence of other witnesses, I prefer the evidence of the latter for the reasons outlined above. Without limiting the generality of that, I make the following specific findings:-
(a) That the lump in the plaintiff’s breast did not manifest earlier that four to six months prior to her consultation with the defendant on 4 February 2003;
(b) That the plaintiff did not tell the defendant about the lump in her breast prior to 4 February 2003 and that she told him on that day that she had had the lump for four or five months;
(c) That the defendant told the plaintiff that he considered the lump to be benign but she needed a mammogram and should have that or go to a breast screening clinic where she would have a mammogram or a needle biopsy;
(d) That the plaintiff declined to take that advice telling the defendant that she was going away and would not be back for at least six months, maybe not until Christmas;
(e) That the defendant did not at any stage tell the plaintiff that she only had three months to live unless she had her breast removed or make any other statement as to her life expectancy.
(f) That the defendant explained to the plaintiff before the excision biopsy surgery on 5 February 2003 the risks associated with such surgery, namely the risk of the cancer spreading, bleeding and infection and that she gave him her informed consent to the surgery.
Dr Elston’s evidence
Dr Elston was the registered staff surgeon at the Cairns Base Hospital to whom the plaintiff was referred.
The net effect of Dr Elston’s evidence as I understood it is that at no time, in his opinion, did the plaintiff have the option of re-excision surgery rather than a mastectomy. Further, despite extensive cross-examination by Mr Keane, there was nothing in his evidence, to support a finding that the defendant did or did not do anything during his surgical removal of the lump on 5 February 2003 to effect Dr Elston’s considered opinion that a mastectomy was the only option open to the plaintiff. Further, Dr Boyages said that even if re-excision surgery rather than the radical mastectomy had been carried out, the scar left by the defendant would have been able to have been removed.[16]
[16] Transcript pg 84 line 20, particularly line 53
Dr Elston succinctly described his thought processes in relation to his decision favouring a mastectomy in these words:-[17]
“Q: You’ve said previously that you preferred the option of a mastectomy than an excision – a re-excision for cosmic reasons due to the size of the lump in proportion to the size of the breast?
A: That was the first consideration. The second consideration was that Mrs Hart stated to me that she did not want radiotherapy unless absolutely necessary and also that she stated that she didn’t want breast conserving surgery. When you are deciding whether a patient has the option of breast-conserving or not, the first consideration is the size of the lump versus the size of the breast. In her case I felt, you know, it wasn’t an option, however if you’re borderline or you’re thinking you might be able to do it – if the patient though does not want radiotherapy then – you know, then you can’t proceed with breast-conserving surgery because it’s the combination of those two which gives the good result. If you simply do a resection the local recurrence rate can be up to 40 per cent, despite removing all the – apparently removing all the cancer. It’s only the combination of the two that can give you as good a result as a mastectomy as far as getting rid of the cancer goes. So in her case my decision was based on those three things, not just the first. The size of the lump compared to the size of the breast, which I felt limited our choice, but also the fact she didn’t want radiotherapy unless absolutely necessary and the fact that she wasn’t keen on breast-conserving surgery. So with these things I made a decision that I felt that a mastectomy was the best option.” (My emphasis).
[17] Transcript pg 67 line 30
Dr John Boyages
The plaintiff called Dr Boyages as an independent expert. Dr Boyages is a Professor of Medicine at the University of Sydney having Bachelor degrees in Medicine and Surgery, a specialist degree in Radiotherapy and a Doctorate in Breast Cancer Recurrence. He is a cancer expert. He provided two written reports dated 8 September 2004 and 24 July 2007[18] and gave oral evidence.
[18] Exhibit 1
In his report of 8 September 2004 he addressed a series of questions advanced by the defendant’s solicitors. Importantly he said two things:-
(a) Based upon the surgical mastectomy specimen resulting from Dr Elston’s surgery, the defendant in his excision biopsy surgery had successfully removed the tumour with no evidence of residual cancer found in that mastectomy specimen;
(b) When asked whether the treatment to the plaintiff would have been any different if the carcinoma had been diagnosed in February 2001, he said the sequence in which the plaintiff would most likely have been treated would have been the same. That is, following a biopsy-confirmed invasive cancer, she would have been referred properly to a surgeon, as happened, to have definitive surgery. This, followed by a referral to medical oncology for assessment regarding suitability of chemotherapy and/or radiotherapy. He said the choice of surgery available to the plaintiff may be different technically if further excision is required instead of radical modified mastectomy as in fact occurred.
Picking up that last point, in Dr Boyages’ second report of 24 July 2007 there is some difference of opinion expressed by him as to whether or not Dr Elston’s decision on a mastectomy was the correct one, but that is not an issue in this case. If it is relevant I have no hesitation in accepting Dr Elston’s evidence, given that he was the one who had the benefit of seeing the plaintiff and assessing the appropriate surgical course having regard to the relative sizes of the plaintiff’s breast and the lump, her aversion to radiotherapy and her statements to him that she did not want breast-conserving therapy. In his second report, Dr Boyages’ answered questions addressed to him by the plaintiff’s solicitors. He firstly described the triple test for the diagnosis of breast cancer as involving:-
(a) A clinical examination;
(b) Imagining (mammogram and/or ultrasound); and
(c) Non-surgical biopsy (usually fine needle biopsy and/or core biopsy).
On the issue of the excision by the defendant of the breast lump he said that the tissue size removed by the defendant was at the lower limit of the average amount of tissue taken if cancer was suspected. He said that if cancer had been diagnosed pre-operatively, the size of the tissue removed would vary, but would have been at least double what was removed by the defendant. In his opinion the amount of tissue removed by the defendant was hardly anything and amounted to 0.8 per cent of the breast.[19] He categorised the procedure undertaken by the defendant as essentially an “excision biopsy” where the lump is removed without large margins,[20] but in paragraph four of the same report says that it was essentially a lumpectomy, given that the subsequent mastectomy found no residual cancer.[21] He said a re-excision of the scar tissue would have yielded the same result as the mastectomy, but that earlier detection of the lump would have allowed both the options of breast-conservation or mastectomy to be available to the plaintiff.He went on to say that, if the patient did not desire radiotherapy, a total mastectomy was a reasonable option. The evidence I accept is that the plaintiff said she was not prepared to have radiotherapy.
[19] Transcript pg 85 lines 1-30
[20] Exhibit 1, Part G pg 3 line 59
[21] Exhibit 1, Part G pg 4 line 99
Dr Boyages gave evidence as to the growth rate of tumours in answer to a question by Mr Kean as to how the lump would have developed in six or twelve months following 5 February 2003 when the defendant removed it, had it not been touched. His best estimate was that it would have grown from its size of 11 mm when excised by the defendant[22] to a size between 16 mm and 20 mm within 6 months and doubling to 22 mm in 12 months.[23] In cross-examination he said that the tumour would have been about 5 mm in size in February 2001 and most doctors, including himself, would never have been able to palpate (examine by touch) a 5 mm tumour. Dr Boyages agreed with the obvious, namely that one can never assess the risk posed to a patient six months or twelve months after February 2003 until after a histological examination of the tissue. As in other aspects of life, it is very easy to be wise after the event. In his experience he said that most women who have a lump detected in their breast are terrified that it may be cancerous and don’t want to wait a week for diagnostic procedures, much less six months. He agreed that it would not have been wise in this case to leave the lump in the breast for six or twelve months once the defendant had detected its existence. He gave examples of grade three tumours, the most aggressive, doubling in size in six to twelve months, thus doubling the chance of spreading the cancer to the glands. The plaintiff’s tumour was grade two.
[22] See report Dr Boyages 24/07/07 pg 2 line 42
[23] Transcript pg 79 line 35; pg 80 line 20
As I have said, Dr Boyages’ view was that re-excision or conserving surgery was only an alternative to a mastectomy provided the patient was willing to undergo radiotherapy, because the cancer recurrence rate with breast lumpectomies were of the order of 20 to 30 per cent over the ten years following the lumpectomy. Dr Elson gave similar evidence. He said if a simple a resection was performed the local recurrence rate could be up to 40 per cent despite removing all the cancer.
Should the defendant have performed the surgery in his rooms?
On this issue evidence was given by two general practitioners, Dr McBride of Sydney and Dr Kable a Brisbane GP. Both doctors proceeded, as indeed did all the medical witnesses, on the basis that the usual procedure in addressing a breast lump is to follow the triple assessment procedure, with the result, in most case, that where surgery is necessary the surgeon has the benefit of a diagnosis as a result of a fine needle aspirant, mammogram or ultrasound. Where the evidence of doctors McBride and Kable diverged was in relation to the question of whether it was appropriate in 2003 for a general practitioner to perform an excision biopsy procedure in the GP’s consulting rooms. That involves two questions, namely whether a GP, not being a specialist surgeon, should carry out the procedure, and secondly, whether the abovementioned venue is appropriate.
Dr McBride is a very experience general practitioner who has practiced in Sydney for all her professional life except for her rural experience of six months in Orange shortly after graduation. She holds the very strong view that a GP should never carry out such a procedure in his rooms and should always be carried out by someone with surgical training such as a surgeon or a GP surgeon in a hospital. She was quite inflexible on that issue.
On the other hand Dr Kable, who also is a very experienced general practitioner, said that in his experience such procedures and similar procedures were commonly carried out by country GPs in their consulting rooms because they did not have access to mammograms, ultrasounds, and fine needle aspirants which were readily available to city practitioners. He conceded that he had never taken a lump out of a breast in his rooms but explained that that was because he had the luxury of the availability of all the tertiary facilities for such a procedure in Brisbane. Similar facilities no doubt are available to Dr McBride in Sydney.
Both Dr McBride and Dr Kable were asked what should be done in a situation where the patient refused to have a mammogram or to allow a pre-surgery assessment of the lump, and when the patient went on to demand that the GP excise the lump.
Dr McBride took the view that the GP should continue dialogue with the patient and again take the patient through the risks involved in such a course, and if the patient was still not persuaded then family members or even community members should be contacted to ensure that the patient was given every opportunity. Dr Kable on the other hand took a more practical view and said that in that event, where the risk was that the patient would not seek treatment, then for the GP to undertake the surgery was a better option than to allow the lump to remain in the breast with all the attendant risks of it growing in the event that it was malignant.
In considering the evidence of both Dr McBride and Dr Kable, I prefer the evidence of Dr Kable. Here, on the findings I have made, the patient demanded the lump be removed, the GP recommended steps consistent with the triple assessment regime and explained the risks of surgery, but the patient declined to follow that course. I do not consider it to be an unreasonable or substandard course of conduct for the practitioner to accede to the patient’s request and remove the lump if he/she was competent to do so to.
I find that the defendant was of the requisite competence. He had surgical experience. In my view the alternative course of declining the surgery would have seen the plaintiff ignore the lump for possibly six months or more, with the possible result, according to the evidence of Dr Boyages, that the 11 mm tumour as at 5 February 2003 would have increased to between 16 mm and 20 mm in six months and doubled to 22 mm in twelve months,[24] together with the added risk of the cancer spreading to the glands. I cannot but conclude that in all the circumstances of the matter the defendant acted responsibly and reasonably. I find also that the venue for the surgery, the defendant’s consulting rooms, was the appropriate venue for the surgery.
[24] Transcript pg 79 line 35; pg 80 line 20
In one sense the question of whether or not it should have been carried out in his surgery is academic because it was a successful procedure which resulted in the entirety of the cancer being cut out and, in my view, it had absolutely no impact on the subsequent options available to, and the decision of, the plaintiff to have a mastectomy rather than re-excision surgery.
Liability
The plaintiff sued in negligence and contract. The contractual duty of care is concurrent and coextensive with the duty of care in tort in that the plaintiff relies on the same facts or matters in both causes of action. The duty owed by a doctor to a patient was considered by the High Court in Rogers v Whitaker[25] where the Court said that the doctor must exercise reasonable care and skill in the provision of professional advice and treatment. The Court said:-[26]
“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’.”
[25] (1992) 175 CLR 479 at 483
[26] (1992) 175 CLR 479 at 487
Another important matter to bear in mind is that the Court, when deciding whether a medical practitioner has exercised reasonable care, must put itself in the position of the doctor prior to the alleged negligence and assess the situation prospectively not retrospectively. In New South Wales v Fahy,[27] Gleeson CJ emphasised that the use of what is known as the “Shirt calculus” (referring to Wyong Shire Council v Shirt) requires:-
“… looking forward to identify what a reasonable person would have done, not backwards to identify what would have avoided the injury.”
[27] [2007] HCA 20 at [57] and [58]
His Honour said:-[28]
“In Vairy v Wyong Shire Council [(2005) HCA 62; (2005) 223 CLR 422], it was explained why it is wrong to focus exclusively upon the way in which the particular injury of which the plaintiff complains came about. In Vairy, it was said [(2005) HCA 62; (2005) 223 CLR 422 at 461 [124]) per Hayne J; see also at 443 [60]-[61] per Gummow J] that:-
‘The apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.’
It is only if the examination of breach focuses upon ‘what a reasonable man would do by way of response to the risk’ (emphasis added), that it is sensible to consider ‘the magnitude of the risk and degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’.”
[28]Vairy v Wyong Shire Council (2005) HCA at [58]
Mr Keane in his submissions said the plaintiff complained of three matters. The first is that the plaintiff underwent an unnecessary surgical procedure that should not have been performed by a general practitioner in his rooms without the plaintiff being informed of the associated risks. There are three allegations in that statement, namely:
(a) That the plaintiff underwent an unnecessary surgical procedure;
(b) That the procedure should not have been performed by a general practitioner in his rooms; and
(c) That the procedure should not have been performed without the plaintiff being informed of the associated risks.
I do not agree that it was an unnecessary surgical procedure given the circumstances in which the defendant found himself, with a patient with a diagnosis of cancer in her breast, told by the defendant that a mammogram / fine needle biopsy was necessary, but refusing to accept that advice and demanding that the defendant excise the lump. In my opinion the defendant was adequately trained and experienced to perform the procedure, and he acted reasonably in carrying it out, particularly given that the alternative, in his mind, was that the plaintiff would ignore the situation and not seek treatment for the cancer for up to a further six months, or possibly ten months up to Christmas 2003.
As to allegation (b) I do not consider that the defendant was negligent in performing the surgery in his rooms. As to allegation (c) I have found that the defendant advised the plaintiff of the risks associated with the surgery, namely the spreading of the cancer, bleeding and infection and that she gave him her informed consent.
The second main allegation is that the performance of the excision biopsy by the defendant diminished the plaintiff’s chances of having breast-conserving therapy. For the reasons I have outlined above I do not accept that the surgery performed by the defendant in any way impacted on the later surgical options open to the plaintiff. Dr Elston’s evidence was that the mastectomy was carried out for three reasons, firstly because of the size of the lump in comparison to the small size of the plaintiff’s breast, secondly the plaintiff’s position that she would not undergo radiotherapy, and thirdly she said she did not want breast conserving surgery. Both Dr Elston and Dr Boyages were of the opinion that if excising surgery / conserving therapy was followed, it was essential that the plaintiff agreed to undertake radiotherapy.
As to the final allegation that the plaintiff’s decision to have the defendant remove the lump resulted from negligent advice given by the defendant which advice did not inform her of the option of having breast-conserving therapy, that claim is not made out. The plaintiff was advised to undergo a mammogram / fine needle biopsy and to attend a breast clinic so that the true nature of the lump in her breast could be determined and further treatment formulated. She declined to accept that advice and made it clear to the defendant that if he did not remove the lump then she would “cut it out herself”. Whilst the defendant may not have seriously contemplated that the plaintiff would carry out surgery on herself, nevertheless he, reasonably, considered that she would ignore the lump possibly for the period of six to ten months mentioned above, if he did not remove it. That risked the unattended growth of a malignant tumour.
Mr Keane submitted that even if the evidence fell short of establishing on the balance of probabilities that the defendant’s negligence caused or materially contributed to the harm claimed to have been suffered by the plaintiff, then the question may arise as to whether the plaintiff has an entitlement to damages for the loss of a chance of a better outcome, had the negligence not occurred. He referred me to Rufo v Hoskin (2004) 61 NSWLR 678; Tabet v Mansour [2007] NSWSC 36, and obiter of Callinan J in Naxakis v Western General Hospital and Anor (1999) 197 CLR 269 at 312-313. As I understand the argument, even if I do not find that the plaintiff’s harm, namely the loss of her left breast was caused by, or materially contributed to, by the negligence of the defendant, nevertheless, the plaintiff should be compensated for a proportion of the plaintiff’s loss, due to her loss of chance in saving her breast. That proposition however relies for its support on my finding some act or omission on the part of the defendant which has the relevant nexus to the plaintiff’s alleged loss of chance. There is nothing that I can see in the defendant’s conduct which can be in any way relevantly linked to the plaintiff’s loss of her breast.
He removed 0.8 per cent only of the plaintiff’s breast tissue which, according to Dr Boyages, was only half the size of the tissue which would have been removed in any surgery done after a pre-operative diagnosis. In other words, even though the defendant did not specifically advise the plaintiff of the options of conserving surgery and a mastectomy, that did not cause or contribute to any loss of chance on the plaintiff’s part. Saving the breast was never open to her unless she had ignored all advice and allowed the tumour to grow unattended. As I have previously said, I do not accept the plaintiff’s evidence that she chose a mastectomy only because the defendant told her that, without it, she would only have three months to live. Had the defendant not carried out the lump excision, the only option still available to the plaintiff would have been a mastectomy given Dr Elston’s evidence as to the size of the lump relative to the size of the plaintiff’s breast and her decisions not to have radiotherapy or breast-conserving therapy. To my mind, any advice the defendant may have given her as to breast-conserving surgery would not have altered the course of events as they unfolded.
I am unable to conclude that the defendant has breached his duty to the plaintiff in any respect in his advice to, and treatment of the plaintiff, or that any damage it may be said the plaintiff suffered is causally connected to any act or omission of the defendant.
Quantum
It follows that as I have found no liability in the defendant, no damages are recoverable. However, lest my decision be reviewed I shall assess quantum on the basis that my findings as to negligence and loss of a chance are found to be wrong.
Chapter 3 of the Civil Liability Act 2003 and Civil Liability Regulation 2003 regulate the assessment of general damages for personal injuries. The plaintiff has submitted that her injuries at twofold, namely, the loss of the breast and the residual scarring. As to the former, she says that Item 38 in Schedule 4 of the Regulations is appropriate. It has an Injury Scale Value of 11 to 20. As to the scarring, it is said that the appropriate Item is Item 155 in Schedule 4, which has an ISV range of 0 to 25.
As to the loss of the breast, Item 38 in Schedule 4 contains the following:-
“Comment about appropriate level of ISV:
An ISV at or near the bottom of the range will be appropriate if there will be a loss of a mammary gland without significant adverse psychological reaction”.
There was no evidence from the plaintiff as to any ongoing adverse psychological reaction to the loss of the breast, though life’s experience tells me that breast removal would be a most traumatic event for any woman. The question is what is the extent of any adverse psychological reaction at point of assessment of damages? The plaintiff impressed me as a very resilient type who was no shrinking violet. She was described in the Cairns Base Hospital medical records as “a diamond in the rough”.[29] She worked on fishing trawlers, a rugged and physically demanding life. However the evidence is that she was treated for depression and anxiety by the defendant, so her resilient exterior may well not truly reflect her emotional makeup. In all the circumstances I consider that an appropriate ISV for Item 38 would be 15 which would produce a damages figure of $18,000 calculated pursuant to s 62(c) of the Act.
[29] Exhibit 2, Part G page 89
As to the scarring, Exhibit 3 comprises six photographs showing the plaintiff’s chest post-operatively, together with the scarring. Item 155 of Schedule 4 of the Regulation provided comments to assist in striking the appropriate level of ISV. Relevantly, it provides:-
“An ISV at or near the bottom of the range will be appropriate if there is a single noticeable scar…. with some minor cosmetic damage”.
An ISV at or near the middle of the range in Item 155 is said to be appropriate where there have been post-operative complications requiring additional medical treatment for up to 18 months. An ISV at or near the top of the range is said to be appropriate if there is gross permanent scarring over an extensive area or areas of the body with ongoing pain and other symptoms. Section 155 also sets out an example of a factor which will affect the ISV and that is the location of the scar.
On one view it could be said that the plaintiff, having a scar in such a private place as her chest which will always be covered will not suffer the ongoing embarrassment which a similar scar on an exposed area of the body may attract. That may be so but it is a scar which confronts the plaintiff every morning she dresses reminding her of what she has been through. Further, I consider that the scar should be treated as one which has attracted post-operative complications for a period of up to 18 months, to reflect the chemotherapy the plaintiff had to endure before the mastectomy wound could be said to be free of cancer.
In all the circumstances I consider that the scar is one which should attract an ISV at or near the middle of the range and I assign an ISV of 13 which, pursuant to s 62(c), attracts the same damages as were attracted under Item 38, namely $18,000, so that the plaintiff’s total general damages are assessed at $36,000. I am not persuaded that there is any basis for uplifting either of the ISVs as was urged by Mr Keane.
The order I make is that the plaintiff’s action be dismissed with costs to be assessed.
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