Jordan v Lee

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JORDAN -v- LEE [2012] WADC 74

CORAM: GOETZE DCJ

HEARD: 14-25 NOVEMBER, 1 & 9 DECEMBER 2011

DELIVERED : 25 MAY 2012

FILE NO/S: CIV 1306 of 2006

BETWEEN: DANIEL JORDAN
Plaintiff
AND
DR MICHAEL LEE
First Defendant
DR DAVID BAKER
Second Defendant

Catchwords:

Medical negligence - Personal injury - Claim for damages resulting from alleged failure to provide full advice of possible regimes of medical treatment, including surgery - Causation - Quantum agreed

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff:     Mr M B Williams SC & Mr D H Hirsch
First Defendant            :     Mr G R Donaldson SC & Ms J E J Wilcock
Second Defendant        :     Mr G R Donaldson SC & Ms J E J Wilcock

Solicitors:

Plaintiff:     Bradford & Co
First Defendant            :     Panetta McGrath
Second Defendant        :     Panetta McGrath

Case(s) referred to in judgment(s):

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18
Sheppard v Swan [2004] WASCA 215
Woods v Director of Public Prosecutions (WA) (2008) 38 WAR 217

INDEX

Introduction
Mr Daniel Jordan
Mr Raymond Jordan and Mrs Jennifer Jordan
Mr Michael Lee
Dr David Baker
Dr Charles Teo AM
The pleadings
Daniel's case as opened by counsel
The facts
1996

Meeting 7 August 1996: Mr Lee and Mr and Mrs Jordan
Mr and Mrs Jordan
Mrs Jordan
Mr Jordan
Mr Lee
The MRI and biopsy
Meeting 14 August 1996: Mr Lee and Mrs Jordan
Mrs Jordan
Mr Lee
Meeting 21 August 1996: Mr Lee and Mr and Mrs Jordan
Mr and Mrs Jordan
Mrs Jordan
Mr Jordan
Mr Lee
Mr Lee's 'brain snap'
Meeting 21 August 1996: Dr Baker and Mr and Mrs Jordan
Mr and Mrs Jordan
Mrs Jordan
Mr Jordan
Dr Baker
Further review in 1996: Dr Gubbay

1997

Mrs Jordan
Mr Jordan
Mr Lee and Dr Baker

1998

Meeting 20 May 1998: Mr Lee, Mr and Mrs Jordan
Mrs Jordan
Mr Jordan
Mr Lee
June 1998: Dr Baker
June 1998: Mrs Jordan
June 1998: Mr Jordan
June 1998: Mr Thomas
November 1998: Dr Baker

1999

Mrs Jordan
Mr Jordan
Mr Lee
Dr Baker
Dr Gubbay

2000

Dr Baker
Mrs Jordan
Mr Jordan
Mr Lee
Events subsequent to surgery with Mr Lee

Surgery with Dr Teo in June 2000
Events subsequent to Dr Teo's surgery
2001 and 2002
The expert evidence

Dr Teo

Dr Teo's first and second reports
Dr Teo's substance of expert evidence
Dr Teo's email 16 November 2011
Dr Teo's oral evidence on 17 November 2011
Dr Teo's meeting with Professor Drake in India
Dr Teo's oral evidence of 9 December 2011
Assistance given to Dr Teo in preparing his written evidence

The defence experts

Mr G Wayne Thomas
Dr Myron Rogers
Professor Bryant Stokes
Professor James Drake
Professor Stewart Kellie
Professor Peter Silbert

Evaluation of Dr Teo's evidence

Requirements for expert evidence
Dr Teo's first and second reports
Dr Teo's substance of expert evidence
Dr Teo's email dated 16 November 2011
Dr Teo's oral evidence on 17 November 2011
Dr Teo's meeting with Professor Drake in India
Dr Teo's other oral evidence on 9 December 2011
A retrospective view of the facts
The relevance of leptomeningeal spread
Does the literature support Dr Teo's opinion calling for resection?
The presumed growth of the tumour
Dr Teo as an expert witness and a witness of fact
Dr Teo's publication from 28 June 2010

Was resection reasonable or unreasonable?

Findings
Duty of care

The needs, concerns and circumstances of Daniel and his parents
Duty to refer Daniel for resection
Mr Lee's alleged failure to advise he would remove the tumour
The alleged failure to provide true answers
Counsel's nine written submissions
First written submission (incorporating 4th, 5th, 7th, 8th and 9th submissions)
Second written submission
Third written submission
Sixth written submission

Causation

The pleading and the evidence
Daniel's so‑called death sentence
Would earlier resection have avoided Daniel's current disabilities?

Quantum

Conclusion

GOETZE DCJ:

Introduction

This action concerns a claim for damages against two medical practitioners for their alleged failure to provide all relevant information and advice relating to medical treatment, including surgery as the treatment of first choice, in respect of a young boy suffering from a brain tumour with leptomeningeal metastases.
The tumour was discovered in 1996 when the plaintiff, Daniel Jordan, was 11 years of age, and without wishing to be disrespectful, I will refer to him as Daniel, so as to distinguish him from his father.
In August 1996, Daniel was referred to the first defendant, Mr Michael Lee, neurosurgeon, for further investigations which confirmed the presence of the tumour and metastases. Mr Lee advised that, at that time, the risks of surgery to remove the tumour outweighed the benefits to be gained from it. The metastases could not, in any event, be removed by surgery.
Mr Lee referred Daniel to the second defendant, Dr David Baker, oncologist, for adjuvant therapy, which he provided to Daniel between 1996 and 2000 at Princess Margaret Hospital. Dr Baker continued to monitor Daniel until 2002.
Only oncological treatment and an aspiration of the cyst associated with the tumour was provided from August 1996 until May 2000, by which time there had been a deterioration in Daniel's condition following which, Mr Lee attempted surgical decompression of the tumour. However, for reasons which were not any part of Mr Lee's doing, that surgery was not completed. Daniel did not consult Mr Lee again.
In June 2000, Daniel was referred to Dr Charles Teo AM, a neurosurgeon in Sydney, who resected about 98% of the tumour, being as much as was possible, with good result.
Dr Teo reported to Daniel's solicitors that surgical resection of the tumour should have been performed earlier, including in 1996, 1998, 1999 and 2000 when Mr Lee and Dr Baker reviewed, advised, and provided treatment for Daniel's tumour and metastases.
In general terms, Mr and Mrs Jordan allege that Mr Lee and Dr Baker failed to advise them in 1996, 1998, 1999 and 2000 that resection of the tumour was the first choice for curative treatment of Daniel's tumour and that there were surgeons who, acting reasonably, would have performed that resection in those years. Counsel submitted that Mr and Mrs Jordan were pleading with Mr Lee for surgical treatment. They believed Daniel to be dying. They claim that had resection occurred in those earlier years, then Daniel would not have undergone unnecessary surgical procedures and adjuvant therapy and he would not have the residual disabilities with which he is now encumbered.
Mr Lee and Dr Baker disagree. They say they did advise of resection from 1996, but that resection of the tumour was not then appropriate and that Daniel's tumour could best be treated in other ways. They say that Mr and Mrs Jordan accepted that advice. However, in 2000 it was appropriate to then decompress the tumour.
Hence, the claim for damages by Daniel against Mr Lee and Dr Baker.
Quantum has been agreed.

Mr Daniel Jordan

Daniel was born on 23 April 1985. He attended East Claremont Primary School until year 7, followed by Christchurch Grammar School from years 8 to 12. Subsequently, he has obtained tertiary qualifications and is now a cadet journalist.
Daniel now suffers hemiplegia on the left side, but has been otherwise symptom free from his tumour and mestastases for over 11 years.

Mr Raymond Jordan and Mrs Jennifer Jordan

Raymond Jordan was born on 13 January 1954. He trained as a journalist and worked for 15 years in public relations. In 1996, Mr Jordan was the manager of media relations at BankWest. He was also a wine writer for a newspaper. He is now a freelance wine journalist.
Jennifer Jordan was born on 7 August 1954. She was, by training, a registered nurse, having worked in oncology and as a palliative care nurse with Silver Chain, which she ceased in 2000 to become a food writer for a local newspaper. She also has her own catering and food business.
Mr and Mrs Jordan married on 9 May 1981. They are Daniel's parents and have a second son, Jack, born on 22 February 1988.
In 1996, the family was doing well financially. Mr and Mrs Jordan were buying their home at 54 Watkins Road, Dalkeith and had been taking regular overseas holidays. They were prepared to pay for whatever treatment Daniel needed. They said they had significant equity in their family home and sufficient income so as to be able to pay for the very best treatment for Daniel.

Mr Michael Lee

Mr Lee was born on 18 September 1941 and was, at all material times, a practising neurosurgeon.
Mr Lee became a Fellow of the Royal Australian College of Surgeons with a speciality in neurosurgery in 1974 following which, he trained in paediatric neurosurgery, initially in Perth and then in Canada. He later returned to Perth.
During his career as a neurosurgeon, Mr Lee practised in both adult and paediatric neurosurgery, with a special interest in the latter.
Mr Lee retired on 1 August 2008.

Dr David Baker

Dr Baker was born on 24 April 1952. After graduating from Monash University in 1975, he became a Fellow of the Royal Australasian College of Physicians with a speciality in paediatrics in 1984. He then became a Fellow of the Royal College of Pathologists of Australia with a specialty in haematology in 1992.
Dr Baker worked as a consultant paediatric oncologist between 1989 and 2007, when he retired.

Dr Charles Teo AM

Dr Teo was born on 24 December 1957. After graduating from the University of New South Wales, he became a specialist neurosurgeon in 1992 and had 10 years training in the United States before returning to Sydney, where he practises as a neurosurgeon.

The pleadings

The statement of claim pleads that:
48.At all material times between August 1996 and May 2000 [Mr] Lee and Dr Baker had assumed a duty to manage [Daniel] with reasonable care and skill.
49.The said duty of care included:
49.2a duty to advise [Daniel], through his parents, of all available treatment options, including but not limited to the option of a surgical resection of the tumour; and
49.3a duty to provide true and correct answers to questions posed by the parents on [Daniel's] behalf as to treatment options
consistent with the representations made as to their specialist knowledge and expertise.
It is then pleaded that in each of August 1996, May 1998, March 1999 and May 2000, Mr Lee and Dr Baker breached their respective duties:
51.… to advise of treatment options by:
Fail[ing] to advise the parents … that surgical resection was a treatment option that other neurosurgeons, acting reasonably, would perform [with consent obtained following a discussion of material risks and benefits].
52.to provide true and correct answers to questions by:
Advis[ing] the parents that [Daniel's] tumour was inoperable … when they knew or ought to have known that this was not true and correct.
The alleged breaches of the duties of care are denied by both Mr Lee and Dr Baker. They do however admit that they each separately owed a duty of care to Daniel to manage him with the reasonable care and skill of a practitioner in their respective disciplines.
It is further pleaded that had Mr Lee and Dr Baker not breached their respective duties of care then, Mr and Mrs Jordan would have made inquiries about other neurosurgeons to carry out the resection of the tumour and further, as against Mr Lee alone, that had the parents been advised by Mr Lee that he was prepared to attempt removal of the tumour, then they would have consented to him doing so.
There is a further issue as to causation and other issues relating to what advice was given in August 1996 by Mr Lee and Dr Baker.
Prior to trial, the parties were ordered to exchange not only the substance of evidence of their respective expert witnesses, but also their witness statements of factual evidence, which were received at trial as the evidence‑in‑chief of the respective witnesses.

Daniel's case as opened by counsel

Mr M B Williams SC opened the case on Daniel's behalf saying that Daniel's treatment by Mr Lee and Dr Baker was expectant, leaving Daniel to adjuvant therapy which, had that been persisted with, would mean that Daniel
would have been dead 10 years ago or at best about six years ago. In either case, his decline towards death would have been, put simply, hideous. It was but for his parents' purely fortuitous discovery in 2000, of what they should have been told in 1996, Daniel would not, in our case, be a hemiplegiac [sic]. He might have had normal vision and he would have been spared some two years of the discomfitures – some would say 'horrors' – of chemotherapy and damaging radiotherapy.
How did this happen? The simple answer, your Honour, is the gulf between – or the gulf that the doctors allowed to exist between what is permissible medical practice and what the common law requires. (ts 42 ‑ 43)
The claim is, that, Mr Lee determined that resection of Daniel's tumour should not occur by reason of the risks of such surgery outweighing the benefits, but
little weight was given to the benefit of not dying. (ts 46)
Daniel's case is, that, his deterioration between 1996 and 2000 was to be expected. Treatment by adjuvant therapy would not cure Daniel:
The treatment plan was to try to delay deterioration and death, but not to prevent it … and plan to manage Daniel's death. (ts 48)
Further, Mr Lee was prepared to consider some surgical resection only when Daniel's condition started to deteriorate.
It was alleged that Dr Baker had
given the prognosis very early on. Expectation 4 years, maximum 10 years and he's dead. (ts 67)
Mr Williams relied on the High Court decision of Rogers v Whitaker (1992) 175 CLR 479 and submitted that advice should have been given to Daniel and his parents that other neurosurgeons, acting reasonably, would have performed resection of the tumour at all times and further, that Mr Lee and Dr Baker wrongly told Daniel and his parents that Daniel's tumour was inoperable.
It was conceded by Mr Williams, that, the experts to be called by Mr Lee and Dr Baker would not be challenged as to their opinions that the advice and treatment provided by each of Mr Lee and Dr Baker respectively conformed to a standard of reasonable care and skill which would be required of the ordinary skilled person exercising or professing to have their respective special skills: Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582, 586 and Rogers v Whitaker [5] and [6].
The real issue is the alleged failure by Mr Lee and Dr Baker to advise from 1996 onwards of the avant‑garde or radical view, as Mr Williams described it, that resection was the appropriate first line of treatment for a tumour such as Daniel's and that such should have been pursued, rather than to have adopted a conservative line of adjuvant therapy, by reason of Daniel's inevitable deterioration and death.
Mr Williams put it this way:
What [Mr Lee] should have done was to say, 'Look, I think it's too dangerous to go in. But if this tumour isn't removed, Daniel's going to die, and in those circumstances I have to tell you that there are other surgeons who would have a go at this. Now, I don't agree with them, but when I'm telling you that we shouldn't attempt surgery, you should know that there are other surgeons who would undertake surgery of this tumour. (ts 65)
Mr Williams submitted that:
The only way that Daniel would have any chance of cure, a chance of avoiding the inevitable deterioration and death that his tumour was going to deliver him was to try to remove it or at least remove as much of it as possible. (ts 46)
The case was opened on the basis that Mrs Jordan was a fully qualified and very experienced nurse in palliative and oncological care. Mr Williams said:
She knew what a massive deep tumour in the brain meant. No two ways about the message that came with that. And hence her impassioned plea to [Mr Lee], 'Can't we do anything about this tumour to get it out?' (ts 71)
Daniel's case is that, in this circumstance of his inevitable deterioration and death, his mother pleaded with Mr Lee, asking whether anything surgical could be done. Mr Lee simply said that 'nothing' could be done.
Later, in his closing address, Mr Williams referred to Daniel being under a 'death sentence' from 1996, which was a factor Mr Lee ignored from 1996 and thereafter.
Dr Baker was allegedly faced with exhortations from Mr and Mrs Jordan asking whether something, somewhere, could be done to try and cure Daniel, rather than to only manage his death. Dr Baker's advice was that Princess Margaret Hospital was a centre of excellence, that it was in touch with the top paediatric hospitals in America and the rest of the world and at the cutting edge in treating this type of tumour. Such information conveyed that it would be a waste of time to try and find someone who would operate, because no‑one would.
Hence, the claim pleads that Mr Lee and Dr Baker failed to properly answer questions put to each of them.
Mr Williams also opened the case on the basis that the medical literature provided by the defence experts demonstrates that surgical resection of deep brain tumours was being performed in other countries before 1996.
Mr Williams said:
The issue is this, 'Well, it's known that this cancer will eventually kill you. We can treat it conservatively with some chemo and expectantly – and manage the symptoms. And then when it gets too bad we'll [operate]. In the meantime you're exposed to all sorts of risks and you have to undergo painful treatment. Do you want to bite the bullet now and [resect the tumour]? That way you don't get to die'. That's what was on the table in effect. (ts 74)
Further, Mr Williams asked of the medical literature supporting resection which was not provided to the Jordan family:
did it admit of the patient ever getting to have the view to which he was entitled at law so that he could exercise the decision, not the doctor?
This case additionally is not about the doctor's point of view of what is feasible and what is wise. It's about the patient's point of view of whether or not to pursue one line of treatment or another. (ts 76)
… Do you manage in a palliative way someone's inevitable course to their demise, or does the patient say, 'I'll take the risk on the operating table so I get a full life. (ts 77)
Ultimately however in 2000, Dr Teo was located and he resected 98% of Daniel's tumour.
Daniel's case is that had that resection been performed earlier then, Daniel would have been spared some two years of chemotherapy, a course of radiotherapy and other treatment, including a biopsy and the insertion of a shunt in 1996 and in 1999, aspiration of the cyst. He would also not have his present disabilities.

The facts

It is convenient to first consider the facts on a year by year basis from 1996 to 2000. Many of the facts are not in dispute. Of those facts which are in dispute, resolution thereof does not necessarily go to matters in issue, but they have relevance to the credibility of witnesses and given the matters raised in opening by Mr Williams, it is appropriate to consider matters in this way.

1996

At the beginning of 1996 when Daniel was approaching 11 years of age, his parents noticed a tremor, or twitch, in his left arm and hand. In June 1996 whilst on holiday, Mrs Jordan noticed that the tremor had become more obvious. Accordingly, she sought medical advice from a general medical practitioner, Dr Dominique Coleman, who referred Daniel to a neurologist, Dr Sassoon Gubbay.
Dr Gubbay saw Daniel on 31 July 1996. He was told that Daniel had noticed intermittent involuntary shaking of his left arm over the previous two years, that shaking occurred at least once or twice during the day and more recently, Daniel had noticed some involuntary movements of the left foot.
Dr Gubbay suggested an EEG and CT head scan, the latter of which suggested a mixed density mass lesion in the right cerebral hemisphere. It was thought to be a slow growing tumour. An MRI was recommended.

Mrs Jordan said that Daniel's disability was very difficult to pick up in August 1996. He had a slight limp and minimal dystonia (abnormal muscle tone resulting in muscle spasm and abnormal posture) in the left foot, such that the toning of his muscles was not normal.
In consequence of the suspected tumour, Dr Gubbay referred Daniel to Mr Lee.

Meeting 7 August 1996: Mr Lee and Mr and Mrs Jordan

Mr and Mrs Jordan

In their written statements, Mr and Mrs Jordan both referred to the meeting with Mr Lee on 7 August 1996, but only to the extent of the requirement for an MRI and biopsy. Neither Mr nor Mrs Jordan said anything in their respective statements about seeking surgical resection of the tumour at the meeting on 7 August 1996. There is no evidence from their written statements that they were pressing for surgery at this consultation.
In cross‑examination, they each had a greater recollection of this meeting.

Mrs Jordan

Mrs Jordan was unable to recall the conversation at the meeting on 7 August 1996. However, she 'could imagine' Mr Lee advised, as part of his reason for seeking an MRI and biopsy, that they would assist him to better assess the feasibility of resection of the tumour, but she did not remember.
Mrs Jordan did however recall that at this first meeting, Mr Lee said resection may be a possibility, but 'at that stage' he was not keen on resection. He also said there were very serious risks of neurological damage attached to such surgery by reason of the location of the tumour being in the basal ganglia. Those risks included hemiplegia on the left side, and blindness.
Mrs Jordan recalled Mr Lee saying at this first meeting, that, given Daniel was then in a good neurological condition, the benefit to be gained by resection was outweighed by the risks thereof 'at that point in time'. She accepted that Mr Lee said the position would be reassessed if Daniel's neurological condition deteriorated.
By reason of her experience in oncology and palliative care, Mrs Jordan accepted that, at that time, she was aware that there may have been other neurosurgeons who had a different opinion to Mr Lee.

Mr Jordan

Mr Jordan indicated in cross‑examination, that, at the first meeting on 7 August 1996, Mr Lee advised that depending on how the tumour appeared on the MRI, he may attempt to reduce the tumour. He used the words 'debulk' and 'decompress' over many years in that regard. He warned of the risks of surgery, including the risks of proceeding to a biopsy, but a biopsy was necessary to ascertain the diagnosis of the tumour.
Mr Jordan was aware of Mr Lee's advice on that occasion that by reason of Daniel being neurologically intact with little in the way of symptoms 'at that point in time', the potential benefit from debulking the tumour was outweighed by the risks associated with such a procedure.
When asked whether he was aware that other neurosurgeons may have a different opinion to that held by Mr Lee, Mr Jordan replied that he was not sure he thought much beyond Mr Lee's opinion.

Mr Lee

Mr Lee's recollection of this first meeting is based on his correspondence dated 7 August 1996 to Dr Gubbay in the following terms:
As you foreshadowed, I think the next step is an urgent MR scan and I have set this in motion. I suspect that irrespective of the findings of the MR that a stereotactic biopsy for the purposes of a histological diagnosis would be appropriate. I don't think it is a resectable lesion but if it turns out to be predominantly intraventricular in position then a case might be made to attempt to reduce its bulk though I must confess I wouldn't be too keen on that plan of action because apart from his tremor he is remarkably neurologically intact despite the size of this lesion.
Mr Lee explained that the uncertainty as to resection at that first meeting related to the position of the tumour in the basal ganglia, its size and histological diagnosis.
At the consultation on 7 August 1996, Mr Lee advised his initial opinion was that the benefits of resection were likely to be outweighed by the potential risks of such surgery given that Daniel was, at that stage, generally neurologically intact, but further investigations were required to be in a better position to decide on the most appropriate treatment plan.
The purpose of the MRI was to ascertain information as to the location and nature of the tumour and how it might develop in the future. It would help better assess the feasibility of resection and the risks of neurological damage occurring during any attempted removal of the tumour.
The origin of the tumour was in the basal ganglia, which is in the right centre of the brain, and is the convergence of sensory and motor connections to and from the brain. There was therefore a significant risk that surgery may result in paralysis on the opposite side of the body. There were other potential risks, including cognitive defect and vision problems.
Even at this time, Mr Lee was intrigued that Daniel was not already hemiplegic given the size of the tumour. Daniel had very few symptoms, which were intermittent in nature and not significantly impacting on his quality of life.
The histological diagnosis was important to Mr Lee in deciding upon the best course of treatment. With a benign long standing tumour, the urgent need for surgery was less than it would have been had the pathology been that of a malignant tumour.
These issues were discussed with Daniel and his parents on 7 August 1996.
When writing on 7 August 1996 to the MRI unit at Sir Charles Gairdner Hospital, Mr Lee requested an MRI of Daniel's brain saying that:
His CT scan shows a very large deep right lateral ventricular mass arising from more medial structures. A more exact assessment of its topography is required to ascertain whether appropriate treatment is just stereotactic biopsy or a subtotal resection should be considered.
It was Mr Lee's practice that his correspondence took the place of his clinical records. Hence he said that he can be sure that his correspondence records the advice given at the consultation. Had Mr and Mrs Jordan requested advice as to whether there was any surgeon who would operate on Daniel, then Mr Lee would have included that information in his report to Dr Gubbay. That such is not in the report indicates that Mr and Mrs Jordan did not so ask. Indeed, they did not give evidence of having asked Mr Lee about this on 7 August 1996.
Further, Mr Lee gave evidence that to the best of his recollection, he never used the word 'inoperable'. He said that all brain tumours can be operated upon. Whether surgery is carried out or not depends on many circumstances.
At this first meeting, Mr Lee had not decided on the best course of action. Surgical resection was an option he was considering, but he first required the MRI and biopsy before coming to any particular point of view.
There is no evidence that at this first meeting, Mr and Mrs Jordan were pressing Mr Lee for a surgical solution to resect Daniel's tumour.
Contrary to Mr Williams' submissions, my finding is that Mr Lee had not decided at this time that radical resection was not possible. Any views he had from the CT scan of Daniel's head were merely preliminary views and that is why further investigation by way of MRI and biopsy were required.

The MRI and biopsy

The report of the MRI indicated:
A very large right basal ganglia heterogeneous tumour extending up to 8 cm. antero‑posteriorly and measuring 5 cm. in transverse and superior inferior diameter. The lesion is centred on the entire basal ganglia structures, is markedly heterogeneous with cyst formation and calcification and shows patchy contrast enhancement. There is enlargement of the adjacent choroid plexus and tumour appears to extend into the atrium of the right lateral ventricle with obstruction distal to this of the occipital and temporal horns.
Several small enhancing nodules are seen in the subarachnoid spaces around the brain stem, related to the left fifth cranial nerve, the left posterior clinoid, the right fifth cranial nerve, the left tentorial margin, the left ambient cistern and the anterior recesses of the third ventricle. These are likely to represent leptomeningeal metastases. Marked local mass affect is shown.
Following receipt of the MRI, Mr Lee recommended the stereotactic biopsy, which occurred on 13 August 1996.
Whilst undertaking the biopsy, Mr Lee inserted a right posterior lateral ventricular peritoneal shunt as the right lateral ventricle was becoming obstructed.

Meeting 14 August 1996: Mr Lee and Mrs Jordan

Mrs Jordan

The next meeting with Mr Lee, upon which Mrs Jordan relies, is alleged to have occurred on 14 August 1996, after the biopsy, but before the result thereof was known. Mrs Jordan said she became extremely upset during the course of this discussion which she said was conducted in the nurses' station when viewing the MRI scan with Mr Lee.
Mr Jordan was not present.
In her statement, Mrs Jordan referred to this meeting and said:
40.I asked him what he could do to help Daniel. Dr Lee told me again in words to the effect 'There is nothing I can do'. I could not accept what he was telling me. I insisted there must be some form of treatment.
This part of the statement is in terms of Mr Lee 'again' giving certain advice. It is the only evidence of any demand or insistence on some form of treatment in the written statement of Mrs Jordan.
In her oral evidence, Mrs Jordan said she could not accept what Mr Lee was telling her and insisted there must be some form of treatment, but Mr Lee could only refer Daniel to an oncologist at Princess Margaret Hospital. She said that she understood this to be confirming his earlier advice that the risks of resection 'at that point' outweighed the benefits.
Mrs Jordan's oral evidence was that she became very emotional in that she
was gradually dissolving into a mess on the floor. (ts 151)
She said that the nurses took her to a side room. This detail is not in Mrs Jordan's written statement. It might reasonably be expected to have been in her statement if it occurred.

Mr Lee

Mr Lee did not write to Dr Gubbay following this meeting. He did write on 21 August 1996, but did not refer to any meeting on 14 August 1996.
Although Mr Lee could not recall this meeting on 14 August 1996, he did not believe he said there was nothing that could be done. Mr Lee did not disagree with the probability that he showed the MRI on a screen to Mrs Jordan, but he said this would have been in his rooms.
This alleged meeting preceded the receipt of the cytology report dated 14 August 1996, which bears a date received stamp of 15 August 1996.
The cytology report dealt with the cerebrospinal fluid and the addendum to the histopathology report is dated 16 August 1996. The date of the histopathology report has not been reproduced on the copy tendered into evidence. The stamped date of receipt on the histopathology report is 19 August 1996.
Mr Lee did not have these pathology reports on 14 August 1996 and he would not have been able to give a definitive view by way of referral for oncological treatment as alleged by Mrs Jordan.
The histopathology of the tumour indicated that Daniel had a grade 2 pilocytic astrocytoma, being a low grade or benign tumour.
Mr Lee was not cross‑examined about Mrs Jordan 'dissolving into a mess on the floor'.
If this meeting did in fact occur, and Mrs Jordan was dissolving as she alleged, then it was the kind of meeting which would be likely to be remembered by Mr Lee. He does not remember this detail.
This meeting, if it occurred, was purely coincidental and nothing final could have been advised because Mr Lee did not then have the biopsy results. Any future treatment depended upon whether the tumour was benign or malignant and any advice Mr Lee gave, absent the biopsy report, must have been only provisional advice dependent upon the pathology of the tumour. To have determined to proceed by way of referral to an oncologist before the results of the biopsy were to hand would be to render the biopsy results as meaningless. The oncologist would not know if the tumour was benign or malignant. This could well impact upon oncological treatment and yet an invasive surgical procedure had been undertaken to obtain the biopsy sample. There was a greater need for resection if the tumour had been malignant. It does not make sense to have determined to proceed with only oncological treatment after the biopsy, but before the biopsy results were to hand.
The whole point of the meeting on 21 August 1996 was that it came after the MRI and biopsy results were to hand so as to enable informed discussion of the results of the investigations, Daniel's condition and to devise a treatment plan. If it had already been finally determined on 14 August 1996 that Daniel should only be referred to an oncologist, then there would have been no need to meet on 21 August 1996, which is the date Mr Lee met the Jordan family and wrote his referral letter to Dr Baker.
I am not persuaded by Mrs Jordan's evidence as to this meeting on 14 August 1996.

Meeting 21 August 1996: Mr Lee and Mr and Mrs Jordan

Mr and Mrs Jordan

Neither Mr nor Mrs Jordan referred to the meeting on 21 August 1996 in their respective written statements. Further, neither of them referred to this meeting in their oral evidence‑in‑chief when supplementing those statements. There is therefore no evidence‑in‑chief of either Mr or Mrs Jordan pressing Mr Lee on 21 August 1996 for some surgical action to be taken.
In their cross‑examination, Mr and Mrs Jordan did not really disagree with matters put to them and in fact, they agreed with many of the propositions put on behalf of Mr Lee as having occurred at that meeting.

Mrs Jordan

Mrs Jordan did not have a clear recollection of this meeting, but she accepted in cross‑examination that, on 21 August 1996, Mr Lee considered resection of the tumour was not the best form of treatment 'at that time'.
Mrs Jordan was of the understanding from Mr Lee that surgery, by which she meant resection, was not an option because the risks outweighed the benefits. One reason given was that Daniel was neurologically intact. At first, in her cross‑examination, she did not understand that that opinion would be reassessed if Daniel's neurological condition deteriorated. However, she later said in her evidence that the opinion would not be reviewed 'except to relieve symptoms', even though Mr Lee had never used that expression with her.
Mrs Jordan was asked if Mr Lee ever said the tumour was 'inoperable', to which she answered that he stated that it was 'non‑resectable'. He used that term in 1996 and thereafter.
Mrs Jordan also said that had Mr Lee told them in 1996 that he would have operated to remove the tumour, then she and her husband would have instructed him to do so by reason of the inevitability of Daniel's death.

Mr Jordan

In his cross‑examination, Mr Jordan recalled the meeting on 21 August 1996. The tumour was reported as being benign, ie, either grade 1 or grade 2.
At this or the first meeting with Mr Lee:
it was discussed that surgery to remove the total tumour was the best solution … But he wasn't going to do that … .
He recommended against it. (ts 283)
This was because the risks outweighed the possible benefits, including the facts that Daniel's neurological condition was quite good and he could die during the operation or end up hemiplegic.

Mr Lee

Mr Lee did not consider surgery by way of resection of the tumour was the most appropriate form of management and he so advised Mr and Mrs Jordan on 21 August 1996. Mr Lee wrote to Dr Gubbay advising him that 'the worrying feature' of the MRI was the appearance of
several small enhancing nodules in the subarachnoid space around the brain stem were suggestive of leptomeningeal metastases.
Mr Lee also observed in his letter to Dr Gubbay:
As you foreshadowed, I don't think at least at this stage that surgery has a role to play in [Daniel's] management.
Mr Lee was of the opinion that surgery at that stage was risky for two reasons. First, it would be necessary to go through the normal brain to access the tumour, which involved a risk of damaging normal brain and could result in neurological damage.
In the resection of marginal tumours, the surrounding distorted normal brain may be damaged resulting in neurological damage.
Secondly, there was potential for damage to occur at the margins of the tumour which was associated with Daniel's neurological structures.
Daniel's neurological outcome following resection could not be accurately predicted. The risks of surgery, especially in relation to the high risk potential development of a left hemiplegia, outweighed the potential benefits.
Other risks of an attempt at resection included blood loss, further neurological deficit and ultimately, a risk of death.
Mr Lee said it was by no means certain that resection of the tumour would improve Daniel's involuntary left sided movements.
Daniel was, at the time, largely unaffected by his symptoms which were intermittent and minimal. He was going to school and partaking in the usual activities of a boy of his age. Surgery would have interrupted his schooling and could have resulted in a much more significant disability than he had at that time.
Mr Lee was vigorously cross‑examined by Mr Williams. He said that upon presentation in 1996, Daniel had a large tumour which had obviously been there for a long time. It was a calcified cystic growth. However, it was not then known how the tumour was behaving biologically.
Mr Lee advised the Jordan family that it was not possible to remove the tumour in its true sense. It was centred on the basal ganglia, not the thalamus.
Removal of the tumour would not deliver a cure. It was not cured at the time of trial. To say that surgery, if feasible, would have given the best chance of survival with a massive tumour like Daniel's was not necessarily a true statement. The concern was that surgery might result in the internal capsule being removed, together with the basal ganglia. They control movement and coordination.
In 1996, when Mr Lee spoke to the Jordan family about surgery, he was referring to an attempt at subtotal curative resection, but he advised against it because he felt the risks were such that it was not in Daniel's best interests at that time. He was then not aware of anyone who accepted resection as being best practice, although he was then aware of contemporaneous medical literature relating to the removal of thalamic tumours. In that literature, it was difficult to find pre and post‑operative pictures relating to something of the size of Daniel's tumour. In most of them, at that time, the basal ganglia was clearly seen separately.
Mr Lee did not think that there would have been others who had a different view. He was certainly aware that some surgical teams were expanding the surgical horizon, but in terms of the practical application of that to regular neurosurgery, Mr Lee was not aware that so-called conservative neurosurgeons, as described by Mr Williams, were being left behind in 1996.
Mr Lee did not know of any neurosurgeon who would have advised that the benefits of an attempt at gross total resection of the tumour outweighed the risks of that surgery from August 1996 to May 2000.
At all times, Mr Lee had confidence in his neurosurgical advice. In 1996, he did not believe that there was a firm contrary view that surgery was the preferred option.
Mr Lee accepted that Mr and Mrs Jordan wanted the tumour removed and a cure obtained. But it was not that simple and he so explained matters to Mr and Mrs Jordan. Mr Lee gave his reasons for such advice.
Mr Lee agreed it was the patient's and the parents' decision that was ultimately required. In the observance of patient autonomy, the ultimate decision lay with them.
Mr Lee also referred to the dilemma relating to the responsibility to a child, and a responsibility to the parents, so that just because a parent naturally wishes to have a large tumour removed straight away, it does not necessarily mean that it should be followed through, because from a clinical perspective, the patient was at risk of becoming clinically worse.

Successful radical surgery offering the best chance of survival played a significant role in the decision to not operate. It was not so much the fact that this was a large benign tumour which, in an ideal world, could be removed safely. However, its actual anatomical position and the neurological structures associated with it meant that resection was not the preferred course of action in 1996, notwithstanding that successful major resection offered the most powerful chance of living to a full life expectancy.
Mr Lee said that if he had been directed to operate in 1996, then he would have explained why he felt that that was an inappropriate line of treatment and recommended that the family seek another opinion. It was the same in 1998 and 1999. He was not aware of any neurosurgeon who, in 1996, would have given advice to attempt gross total resection. That also applied in 1998 and 1999.
Mr Lee would not have known to whom he should send Daniel if Mr and Mrs Jordan and Daniel had wanted alternative treatment, ie, surgery. He could only refer them to a colleague, but he said there was no question at that time as to debate by them about his recommendations.
Mr Lee said that it was inappropriate to proceed to surgery in August 1996. He accepted that the result of his advice was that he was not going to operate, although he did not say it in those terms. What he said was that it was inappropriate to consider surgery at that particular time. He did not discuss with the Jordan family that other neurosurgeons might take a different view. He said it was not suggested that they wished for a second opinion.
Mr Lee had read the witness statements of Mr and Mrs Jordan, but he did not recall saying in 1996 that 'surgically, nothing can be done'. Rather, he explained why surgery at that particular time was inappropriate in that surgery would more than likely have resulted in unacceptable neurological deficit. It seemed unreasonable to Mr Lee to suggest Daniel should have surgery that had a strong chance of changing what were dystonic movements in the left upper limb into left hemiplegia. There was no benefit in that.
Mr Lee explained that what is expected from surgery is a balance between the risks and the benefits. A requirement of surgery is that it is in the best interests of the patient. Every parent would wish for this sort of tumour to be removed, but in 1996 this tumour was not threatening Daniel's life in the immediate future. Further, it was not necessarily going to cause problems and it did not mean that he had a limited life expectancy.
In 1996, the question was not so much one of survival, it was a question of determining the biological behaviour of the tumour, because it was not known how long it had been that size. Certainly, there were already neurological symptoms, but this was a unique tumour as to which the statistics did not provide help. The tumour would kill Daniel if left untreated, but a combination of observation to determine the biological behaviour of the tumour, and an attempt at controlling it, to minimise, if possible, further neurological deterioration seemed appropriate. Ultimately then, it would be necessary to make the choice of running the risk of hemiparesis by proceeding to resection or not. The biopsy, the shunt procedure and later in 1999, the cyst aspiration only exposed Daniel to a minimal risk compared to major resection.
Mr Lee said that the most appropriate form of management of the tumour was adjuvant treatment by the oncology department at Princess Margaret Hospital. He was of the opinion that this was more appropriate due to the significant risk that resection could result in Daniel becoming hemiplegic. Adjuvant treatment was required to limit the chance of the tumour growing.
Such tumours as Daniel had are indolent in nature, and Daniel had had his for some time. Chemotherapy offered the chance to arrest it and to improve Daniel's symptoms.
Mr Lee said that, on 21 August 1996, he advised that surgery was the preferred course of action, but at that time the risks of surgery outweighed the benefits in terms already explained above. It was Mr Lee's opinion that the tumour should be kept under review given that Daniel was having minimal problems. Mr and Mrs Jordan agreed with a course of adjuvant therapy. They were immediately referred to Dr Baker.
It should also be noted, that, in cross‑examination, Mr and Mrs Jordan agreed with Mr Lee's advice to not proceed to surgery was being given 'at that time' or 'at that point' in 1996.
The qualification on Mr Lee's advices as to timing is important. It was readily accepted by Mr and Mrs Jordan in their cross‑examination. They accepted, without question, the advices and recommendations given by Mr Lee. In 1996, they were not pressing Mr Lee or pleading with him for a surgical solution, either in Perth or elsewhere, to remove Daniel's tumour in order to achieve a cure.
Mr Lee had no recollection of Daniel's parents expressing any concern or dissatisfaction with the management plan he had recommended. Mr Lee had no recollection of Daniel's parents expressing a preference for an attempt at resection. Had there been any suggestion of dissatisfaction with the advice then, Mr Lee said he would have stated that in his reporting letter to Dr Gubbay.
Certainly, there is absolutely no evidence either in the written statements of Mr and Mrs Jordan or in their oral evidence that, on 21 August 1996, they were pressing Mr Lee for surgical intervention for Daniel, whether as a curative form of treatment, or at all. They did not suggest in their evidence that they then sought advice from Mr Lee for a referral to another neurosurgeon who would attempt resection of Daniel's tumour.
My finding is that if there had been any such concern, dissatisfaction or stated preference or pressing for surgery then, as Mr Lee said, he would have made a record to that effect in his contemporaneous correspondence to Dr Gubbay. That there is no such comment is indicative of the fact that there was no dissatisfaction expressed or desire for some form of treatment other than adjuvant therapy.
I also find, that, Mr Lee would not have attempted resection of Daniel's tumour in 1996 even if Mr and Mrs Jordan had instructed him to do so.
The other issue from this August meeting is not whether Mr Lee was correct to refer Daniel for adjuvant therapy. That was conceded as being appropriate treatment in opening by Mr Williams. Rather, the issue is whether Mr Lee also should have advised Mr and Mrs Jordan that there were other neurosurgeons who, acting reasonably, would have attempted resection of the tumour, even in the absence of any expressed concern or request for him to do so by Mr and Mrs Jordan. I will deal with this below. In short however, it would have been unreasonable and illogical to do so given his view that an attempt at resection would more than likely result in unacceptable neurological deficit to an 11‑year‑old boy who was then remarkably in good neurological condition.
Mr Lee was not cross‑examined about leptomeningeal deposits.
Mr Lee was aware of Dr Teo in 1996.
On 21 August 1996, Mr Lee referred Daniel to Dr Baker for an appropriate course of chemotherapy and, possibly radiotherapy, according to the protocol of the Children's Cancer Study Group from North America.

Mr Lee's 'brain snap'

I turn now to a specific incident involving the cross-examination of Mr Lee. This occurred very late on 17 November 2011.
Mr Lee agreed that it was a matter for the parents to decide whether there should be an election for surgery or expectant management. Mr Lee referred to the tumour as being one of the biggest that could possibly be imagined in Daniel's basal ganglia. He said:
You show the parents this MR scan and not unreasonably they wish to have it excised and removed and cured. But it's not that simple, and this is what I was explaining to them. And I had no – an – no indication that they were dissatisfied with the decision not to operate [in August 1996]. (ts 459)
The following exchange between Mr Williams and Mr Lee then took place:
Right. And what I'm putting to you that in observance of patient autonomy, the ultimate decision as to whether [resection] be attempted lay with them, otherwise there's no - - - ? - - - Yes. Yes.
Yes. Right? - - - - But by the same token, if I may, I was prepared to remove it then if they asked me, but they didn't. (ts 460)
Upon resumption on the following morning, the cross‑examination picked up on Mr Lee's evidence from the previous day that he was prepared to remove the tumour if Mr and Mrs Jordan had asked him to do so. Mr Lee agreed that he did not give that information to Dr Gubbay when he reported to him. Mr Lee sought to expand on that in cross‑examination, but was not given the opportunity to do so. It was then put to him that a similar statement was not contained in his written statement of evidence. Mr Lee agreed and said that his evidence the previous day had been 'in error' and 'was false'. He realised that he had incorrectly asserted his views the previous day and said there was nothing that could be done about that until matters were raised again on the following morning. He was cross‑examined that his evidence the previous day was the truth, but he said that it was not. He explained:
I realised that I had incorrectly asserted my views last night. But there was nothing I could do about it until you bought it up this morning.
So it came to you in the night? - - - No it came to me before I left this building.
Yes. And what was it that came to you – I withdraw that. You realised, I suggest, that that could be damaging to your case, didn't you? - - - No. I realised that I had misrepresented, in the heat of the moment, call it a brain snap whatever, what I had said, with regard to my responsibilities towards my patients. I misunderstood, in the context of the questioning that had gone on previously, where we were, and I recognised that I had said something out of frustration, I think, rather than what the situation is, or was.
So out of frustration you said something that was quite false, while you were giving sworn testimony? Yes or no will do Mr Lee? - - - Yes, it simplifies the situation somewhat. (ts 473)
The cross-examination proceeded with respect to the surgery by way of subtotal curative resection, which Mr Lee had advised against, stating that, at that time, he was not aware of anyone who accepted that as being best practice, although he kept up to date with the literature and he explained that:
In the context of my evidence yesterday, it was a – in effect, incorrectly said in terms of trying to get through to you that I was at that time quite confident, if surgery was indicated, of being able to do it. But - - -
This is the brain snap you were referring to? - - - I am, yes.
I am prepared to accept that this part of the evidence of Mr Lee on 17 November was 'a brain snap' as stated by him and that he raised it at the earliest opportunity he believed he could during the continuation of cross‑examination on the following morning. It was not something which Mr Lee raised of his own volition at the commencement of the following morning, but it was raised within a short time of cross-examination resuming. He had earlier attempted to expand on his evidence, but was kept within the tight confines of cross‑examination as demanded by Mr Williams.
Mr Lee's 'brain snap' does not adversely affect his credit. He was prepared to confront it himself on the following morning with whatever consequences might arise therefrom and that stands to his credit.

Meeting 21 August 1996: Dr Baker and Mr and Mrs Jordan

Mr and Mrs Jordan

Mr and Mrs Jordan both said, that, Dr Baker told them the best treatment for Daniel's type of tumour was surgery, but in his case, it was not an option because the tumour was in four lobes of the brain and was too hard to get at. It was too dangerous to operate. They both accepted Dr Baker told them this on the basis of Mr Lee's advice.
Mrs Jordan accepted that Dr Baker was not giving advice as to the advisability of surgery. Indeed, she accepted that only a neurosurgeon could give advice about resectability of the tumour. Mr Jordan also accepted that Dr Baker did not give surgical advice.
In their respective written statements, Mr and Mrs Jordan both say they asked Dr Baker words to the effect:
Is there anywhere else in the world where we could take Daniel where this type of tumour had been successfully treated?
Mrs Jordan said Dr Baker 'assured' them there was not. Her statement reads as follows:
48.Dr Baker told Ray and I assured us that there was not [sic]. He said words to the effect 'PMH is in touch with the top paediatric hospitals in America that were at the cutting edge in treating this type of tumour. We trade information with these major USA children's hospitals and we are up to date with the latest treatment techniques'.
49.I accepted Dr Baker's assurances that Daniel would die eventually from his brain tumour and that chemotherapy would give him the best chance to prolong his life.
There is some difficulty with this statement. Underpinning it is Daniel's presumed eventual death. Further, as will be seen below, chemotherapy was not aimed at prolonging Daniel's life, but at arresting the growth of the tumour and improving Daniel's clinical symptoms. Mrs Jordan agreed in cross‑examination that chemotherapy was to contain Daniel's condition. She accepted that it had a 70 – 80% chance of improving his condition.
Mr and Mrs Jordan also said Dr Baker told them that PMH was as good as the best in the world and described PMH as
'a centre of excellence' in treating these kinds of tumours in children.
In his statement, Mr Jordan said with respect to their question regarding whether this type of tumour had been successfully resected elsewhere:
42.Dr Baker replied using words to the effect: 'PMH is in touch with the top paediatric hospitals in America and the rest of the world and these hospitals are at the cutting edge in treating this type of tumour. You do not need to look anywhere else because PMH is exchanging information with major children's hospitals and is up to date with the latest treatment techniques and PMH is as good as the best in the world.' I specifically recall that he described PMH as 'a centre of excellence'.
43.What Dr Baker said left me with a clear impression that PMH was up to date with the most advanced treatment options and techniques in the world. I had no reason to doubt Dr Baker for one minute and relied on that assurance for a long time to come.
Mr Jordan went on to repeat, essentially, what Mrs Jordan said at par 48 of her statement as detailed above.
Mr and Mrs Jordan both recite in their respective statements that Dr Baker said words to the effect that Daniel had only a prognosis of four to 10 years' life with the best treatment available.

Mrs Jordan

During her oral evidence‑in‑chief commenting on specific paragraphs of her statement, Mrs Jordan added to the detail in her statement and said with respect to Daniel's life expectancy, that, Dr Baker
said that he would go down the line of chemotherapy, and with the statistics available to him, giving children with these type of tumours chemotherapy, the incidence was 20% might get to 10 years and 80% to four years.
He had known some children himself that had got perhaps to 10 years.
I believe I started grieving at that stage because I realised that ‑ well, we had been told that resection was the main ‑ was the only thing really that could cause any cure or potential cure and I was of the understanding that chemotherapy was to prolong his life to give him some extra time. So I tried to prepare myself from 1996 that I was going to lose my son. (ts 152)
When challenged about this, she said her recollection in 1996 was that Dr Baker had said Daniel
had four to 10 years to live.
Mrs Jordan disagreed with the proposition that Dr Baker never told her Daniel would die as a result of this tumour.
She said that:
he actually told us that the outside Daniel would live when we asked him was 10 years
in 1996 at the very first appointment.
She also said Dr Baker said
his prognosis was 10 years at the outside
and she further said Dr Baker
actually said, 'Daniel's prognosis is 10 years. He said, Daniel's prognosis is four to 10 years'. (ts 172 and 208 – 209)
This, of course, is consistent with her written statement, but lacks the detail of her oral evidence‑in‑chief of percentages.
It was put to her, that, Dr Baker never said any such thing about four to 10 years, to which she twice replied:
Well, of course he'd have to say that. (ts 209 and 210)
When it was further put to her that she thought Dr Baker was 'just lying', she sought to justify her position by saying he was
being informed from the very beginning by Dr Lee. He was under total instruction, pretty much, from Dr Lee. (ts 210)
including advising Dr Baker on chemotherapy, because Dr Baker and Mr Lee worked together. She said the basis for this comment was that Dr Baker had said such was the case.
Mrs Jordan agreed Mr Lee never used the word 'die', but she did say such was her impression because
Dr Lee continually told us that the tumour was non‑resectable. And in my mind non‑resectable means it's essentially going to become terminal. (ts 153)
It should also be noted that when cross‑examined, Mr Lee stated that in 1996 the tumour was not life threatening to Daniel in the immediate future. It was not necessarily going to cause problems and it did not mean that Daniel had a limited life expectancy.
Mrs Jordan gave evidence, that, Dr Baker recommended a course of chemotherapy and to hold off on radiotherapy for as long as possible given that surgery was not an option.

Mr Jordan

In his cross‑examination, Mr Jordan conceded that 'survival rates were discussed' when he and his wife met with Dr Baker and when a percentage of between 20% and 80% survival over a 10 year period was put to him, without reference to four years, he said that
it's a long time ago, but they do sound right. (ts 286)

Dr Baker

By the time Daniel had been referred to Dr Baker, Mr Lee had advised surgery was not an appropriate option and that was why Daniel had been referred to him, as an oncologist, for adjuvant management. Dr Baker said that he was not involved in the diagnosis of the tumour or in the decision as to whether or not surgery to resect the tumour was appropriate at that stage. Dr Baker said that fell within the expertise of the treating neurosurgeon, namely Mr Lee.
In cross-examination, Dr Baker said he told Mr and Mrs Jordan that with low grade tumours, the best therapy is complete surgical excision if possible, without sequelae, but the specifics are for neurosurgical teams.
Dr Baker took advice from Mr Lee regarding neurosurgical matters. When he wrote on 28 August 1996 to Mr Lee regarding an 'unresectable' tumour, he was really just repeating Mr Lee's advice on that. Further, there was leptomeningeal dissemination which was known to not be resectable. The prognosis was unknown.
Dr Baker advised Mr and Mrs Jordan that generally, primary surgical intervention which achieved more than 90% resection offered the best prospect of long term disease control and cure of low grade gliomas, but with unknown risks of potential irreversible post-operative neurological defects of variable potential severity. All tumours can be operated upon, but such surgery comes with other risks, including death and very serious brain damage. He was loathe to get involved in any such decision as that was a matter for the neurosurgeon and not within his expertise. He advised whether or not Daniel's tumour could be resected was a matter for a neurosurgeon, to which he deferred to Mr Lee.
Dr Baker discussed adjuvant management treatment with Daniel and his parents. The objective of such adjuvant management was to limit the growth of the tumour, possibly reduce the tumour in size and to improve Daniel's clinical position. The potential benefits of reducing tumour size were two‑fold; namely the abatement of symptoms and to arrest the progression of the tumour.

Dr Baker also discussed with Mr and Mrs Jordan and Daniel the fact that Daniel had leptomeningeal nodules or spread. If Daniel were to have radiation to his tumour, he would necessarily need that in respect of his spine.
By reason of the long term side effects from radiation and because systematic chemotherapy would treat both the primary site and the leptomeningeal deposits, chemotherapy was the first choice of treatment to see if Daniel's condition could be contained by that alone, and thereby avoid the need for radiation therapy, or at least delay it. When treating children, it is best to avoid radiotherapy, if possible.
Dr Baker said there was encouraging data coming out in recent publications demonstrating the efficacy of new treatments for unresectable or leptomeningeal disseminated low grade gliomas, as suffered by Daniel. Studies indicated that patients were improving with that type of treatment.
In consequence of all this, Mr and Mrs Jordan accepted Dr Baker's advice and agreed to chemotherapy for Daniel. In the first instance, Dr Baker would proceed with a chemotherapy initial 10 week course which offered a 70 ‑ 80% chance of improving his clinical condition.
Dr Baker advised that chemotherapy and/or radiotherapy would not get rid of the tumour.
In his statement, Dr Baker said he
advised that the prognosis for low grade gliomas with adjuvant treatment was variable with published outcomes varying between 20% and 80%, 10 years' survival rate – [41].
Dr Baker recalled discussing Daniel's prognosis with the family. He said he put it, as always, in the context that those figures are meaningless for an individual who cannot have a 20% or an 80% chance of survival. They either have successful therapy or eventually the tumour, or the cancer, leads to their demise. Dr Baker put it in the context that these statistics bore no relevance to Daniel as an individual.
At no stage did Dr Baker say that Daniel would die at between four and 10 years. That is something he does not do.
Dr Baker's explanation as to why he would not have told Mr and Mrs Jordan that Daniel would live for between four and 10 years is compelling. First, he did not do that as a matter of course in his medical practice and secondly, he would not know what any given individual would do in any given circumstance and so he put it in the above context. Thirdly, he did not refer to a time of four years at all.
Mrs Jordan said that she had read Dr Baker's statement prior to giving evidence. In her evidence‑in‑chief she referred to percentages which were not in her statement. Ultimately, she simply reverted in cross‑examination to what she had said in her statement, without reference to percentages.
Mr Jordan did not recall percentage figures in his statement, but he accepted that the percentage figures over a 10 year period put to him in cross‑examination 'do sound right' and this is consistent with Dr Baker's evidence that he did not refer to a time of four years at all. Mr Jordan could not otherwise recall the long term survival rate in his oral evidence. Mr Jordan also referred to a four year period in his statement, as did Mrs Jordan.
Mrs Jordan said Mr Lee had said Daniel's tumour was non‑resectable and she therefore believed it would be terminal. She claimed Dr Baker gave a prognosis of four to 10 years. She began the grieving process for her son's expected death following her first meeting with Dr Baker on 21 August 1996 at a time when death was certainly not on the agenda insofar as Mr Lee and Dr Baker were concerned. She agreed that Mr Lee never said that Daniel was going to die.
Pilocytic astrocytomas can remain indolent for many years.
Mrs Jordan claimed to have oncological and palliative care experience. A friend of hers had died from a benign tumour.
It would seem that Mrs Jordan misconstrued what Dr Baker told her about Daniel's prognosis. Mrs Jordan formed her own view of Daniel's deterioration and death for reasons not associated with either Mr Lee or Dr Baker notwithstanding, for example, that she accepted Dr Baker told her on 21 August 1996 that chemotherapy was to contain Daniel's condition and had a 70 ‑ 80% chance of improving his condition which, it seemed to do over nearly the next two years. Mrs Jordan said 'chemotherapy was to prolong Daniel's life to give him some extra time'.
In the above circumstances, I am not persuaded by Mr and Mrs Jordan's evidence and prefer the evidence of Dr Baker in the terms of detail he provided as to Daniel's life expectancy for the reasons he stated. Mr and Mrs Jordan did not refer to percentages in their statements and yet they recalled them in their different ways in their oral evidence.
Further, Mrs Jordan was likely discussing matters over time with Mr Jordan and any misunderstandings she had, for example with respect to Daniel's wrongly presumed death, were passed on to Mr Jordan, who also gave evidence that Daniel's death was 'inevitable', when it was not. This is likely to explain how Mr and Mrs Jordan have, in this instance, given the same evidence of a prognosis of four to 10 years in their written statements. Mrs Jordan added percentages in her oral evidence and Mr Jordan simply accepted that percentage figures 'sound right', but he admitted that it was a long time ago, such that he would not seem to disagree that his memory about this was poor.
Further, in cross‑examination, Dr Baker did not recall either Mr or Mrs Jordan asking in 1996 if there was anywhere else in the world where this type of tumour had been successfully treated. In responding to questions asked about this in cross‑examination, Dr Baker said it would have been unusual for them to ask that question of him, given that he was advising on adjuvant therapy, upon referral from a neurosurgeon who had advised that the tumour was not safely resectable. He said that if there was such a question to have been asked, then, Mr Lee was the person to ask.
However, there is no reason to think that Dr Baker would not have answered this question truthfully, if it had been asked. Indeed, he told Mr and Mrs Jordan why the best treatment, namely surgery, was not to be pursued by Mr Lee.
Dr Baker agreed that he told the family words to the effect that Princess Margaret Hospital, where Daniel was to be treated, was part of the Children's Cancer Group, which later, in about 2000, became the Children's Oncology Group. This group was arguably the pre‑eminent children's cancer cooperative group of member paediatric hospitals throughout North America involving research and treatment of children with all forms of cancer, including brain tumours. In 1996, Princess Margaret Hospital was the first elected member in the world outside North America to join that group. To be elected required that Princess Margaret Hospital meet certain standards. As such, it offered the same therapy as was available in major international countries and was in touch with the top paediatric hospitals in America at the cutting edge in treating this type of tumour.
Dr Baker's advice in this regard was, no doubt, said by him as relevant background information provided to a new patient and his parents. If it responded to the question of treatment in the oncological sense, then there is nothing about it which can be criticised.
However, if the question about treatment related to surgery, then this advice from Dr Baker was not responsive to the alleged question of whether there was anywhere in the surgical world where this type of tumour had been successfully treated.
Indeed, having seen Mrs Jordan give her evidence, it can be imagined that if a non‑responsive answer was given to a question, then she would have required an answer. However, she said Dr Baker gave the assurance that there was nowhere this type of tumour had been successfully treated but, Mr Jordan did not say that any such assurance was given.
My finding is that Mr and Mrs Jordan did not ask this question, or if they did, it was not answered to the effect that this type of tumour had not been successfully treated elsewhere as Mrs Jordan claimed. Only she suggested that it was directly answered in this way. Mr Jordan said only what is set out from his statement. Indeed, all Mr Jordan suggested was that Dr Baker left the clear impression that Princess Margaret Hospital was up to date with the most advanced treatment options and techniques. That is the assurance to which his statement refers.
Other than this alleged question as to treatment elsewhere, as to which Mr and Mrs Jordan differed in their evidence of the alleged assurance given, there was no evidence of pressing or pleading with Dr Baker for a surgical solution.
I accept that in the course of their discussion, Dr Baker told Mr and Mrs Jordan about the work being done at Princess Margaret Hospital and how it was part of the Children's Cancer Group. However, Dr Baker's interest in that Group was as an oncologist and his advice is to be viewed in that way and with that bias, but not with the bias of a neurosurgeon. Mr and Mrs Jordan each accepted that Dr Baker did not give them surgical advice.
It was also put to Dr Baker during cross‑examination by Mr Williams that Daniel had not required adjuvant therapy after Dr Teo's surgery and that had Daniel's tumour been resected in 1996, then Daniel would not have required chemotherapy and radiotherapy. Dr Baker accepted that proposition as a hypothetical, but did not accept it as a fact
…because he didn't have a complete resection [with Dr Teo], so there is a residual disease, and there is leptomeningeal disease that is not resected. And as Mr Teo said in his own letter, he may require adjuvant therapy in the future, and I would hold that position now. (ts 511)
Dr Baker was of the opinion that Daniel's tumour was not fully resectable because it came in two parts – the tumour and the leptomeningeal deposits, the latter of which
were in positions where it would be inadvisable to attempt resection, and therefore inoperable – or unresectable under those terms. (ts 514)
Relevant to this issue is the evidence of the defence expert oncologist, Professor Stewart Kellie, which will be considered later in these reasons.

Further review in 1996: Dr Gubbay

In September 1996, Dr Gubbay reviewed Daniel. There were no new neurological signs at that review. His chemotherapy had been administered without any significant side effects.
After chemotherapy in November 1996, Dr Gubbay felt that there was some very mild clinical improvement because the involuntary movements of the left upper limb were absent and the left hemiparesis was not quite as marked as previously. Daniel too, was of the opinion that his left hand movements were not quite as much, or as obvious, as before. There was no deterioration of his condition. There was also some mild reduction in the size and visibility of some of the leptomeningeal nodules.

1997

Throughout 1997, Daniel continued under the care of Dr Coleman, Dr Gubbay and Dr Baker. In February, May and August 1997, Dr Gubbay reported that there was no neurological deterioration in Daniel's condition. There appeared to be some reduction in the size of the tumour, but some associated increase in the size of the cyst which co‑existed with the tumour.
In September 1997, there was stability in the tumour, with some slightly decreased leptomeningeal spread and in October 1997, Daniel's neurological condition was essentially the same.
This continued through until 30 April 1998. The MRI's being constantly arranged by Dr Gubbay indicated that the tumour was neither growing nor altering in any way.

Mrs Jordan

Mrs Jordan said in cross‑examination that, in 1997, there was a slight deterioration in Daniel's condition, but nothing dramatic and that Daniel complained of some problem with his vision.

Mr Jordan

Mr Jordan said in cross‑examination that Daniel's clinical condition changed slightly in 1997. His left arm was slightly more limp, less useful, less dexterous and his gait was slightly changed. There was a slight improvement with chemotherapy to the end of 1997.

Mr Lee and Dr Baker

Mr Lee did not see Daniel from August 1996 until May 1998, but he received copies of correspondence passing between the various medical practitioners, including Dr Baker, attending to Daniel's needs and he was therefore aware of his progress and treatment during that period.
It was not suggested that there was any pressing or pleading for a surgical solution in 1997.
Neither Mr Lee nor Dr Baker were cross‑examined about 1997.

1998

Between 1997 and May 1998, Daniel and his parents continued to consult Dr Coleman, Dr Gubbay and Dr Baker. There is no evidence suggesting that they were pursuing anyone for surgical intervention during this period.
In 1998, Daniel began high school. He moved from East Claremont Primary School to Christchurch Grammar School, where he began high school.
In May 1998, an MRI indicated a slight increase in the cystic component of Daniel's tumour. There was no further leptomeningeal spread, but Daniel's dystonic posturing and movement disorder of the left hand were becoming worse.
By letter dated 5 May 1998 to Daniel's treating general practitioner and copied to Mr Lee, Dr Baker referred Daniel back to Mr Lee
to reassess the possibility of operative intervention. …interested to see if [you] can decompress and remove the exophytic soft tissue component protruding into the cystic space.
Daniel consulted Mr Lee on 20 May 1998. He had not consulted Mr Lee since 21 August 1996.

Meeting 20 May 1998: Mr Lee, Mr and Mrs Jordan

In their statements, Mr and Mrs Jordan both refer in some detail to the consultation on 20 May 1998 with Mr Lee. Their statements do not however, give any impression of them then pressing for some form of surgical action. Certainly, surgery was discussed, but nothing further is alleged in their statements to have taken place.

Mrs Jordan

Mrs Jordan said in cross‑examination that in mid‑1998, Daniel's condition 'was a little bit worse'. His mild hemiparesis manifested in a limp. Nonetheless, the left leg symptoms were not causing any particular problem. The left arm was dystonic. He could still use it a bit, but it was worsening. The left arm symptoms were more pronounced than the left leg symptoms and that was where Daniel had his main difficulty.
In her statement, Mrs Jordan said the recent MRI showed the cyst to be enlarging and
either Ray or I asked Mr Lee about removing any of the tumour. Mr Lee said again words to the effect 'It is not possible to ever remove the tumour surgically because of its location and such an operation could kill or paralyse Daniel'. [59]
Mrs Jordan said that:
Dr Lee advised us to keep monitoring Daniel and that he would see him again in a few months. [61]
In cross‑examination, Mrs Jordan said she understood the purpose of a referral back to Mr Lee was because fluid was accumulating in the cyst which might be drained so as to reduce pressure on the brain. She did not understand this referral to seek advice regarding resection of the tumour. She was asked whether Dr Baker discussed the form of surgery Mr Lee might carry out, and said Dr Baker
gave us information that [aspiration of the cyst] would probably be the case.
Dr Baker could not say that exactly because
… quite clearly he's not the neurosurgeon. (ts 183)
Mrs Jordan gave evidence that Mr Lee indicated that it was not clear to him that the increase in the size of the cyst was causing the increase in Daniel's dystonia at that time. He was however, reluctant to consider decompression or resection of the cyst because he was not then certain that it would result in a clinical benefit to Daniel by reason of the risk of significant neurological deficit that might arise from such surgery.
Mrs Jordan said that Mr Lee's advice was that he should review the situation in six months time. Mrs Jordan agreed in cross‑examination that depending upon Daniel's clinical position, Mr Lee would review whether surgery, including resection of the cyst, was in his opinion, in Daniel's best interests.
Although Mrs Jordan could not recall discussing resection of Daniel's tumour with Mr Lee on this occasion, she could recall that he advised the risks of resection of the tumour outweighed the benefits at that time, as previously.
Mrs Jordan also recalled Mr Lee stating that resecting the tumour may damage normal functioning brain because the tumour or its borders can actually infiltrate a normal functioning brain and to excise such part of the tumour as has infiltrated the brain requires excision of the functioning brain. However, contrary to this, she next denied that Mr Lee then advised against resection of the tumour at that point in time and that surgery could be reconsidered if Daniel's condition deteriorated. But she did recall that Mr Lee would review Daniel in six months' time.
Further, in the context of this referral back to Mr Lee, Mrs Jordan was asked the following:
And in the area where Daniel's tumour was, in the basal ganglia, and particularly where Daniel's tumour was attached, that if you tried to get out that border area, there was near enough to an inevitability that it would have a catastrophic neurological consequence?
to which Mrs Jordan replied:
Yes, with this surgeon. (ts 186)
This question reflects the objective risk of surgery, but Mrs Jordan's answer subjectively suggests that if Mr Lee were to have attempted resection, then, by reason of his involvement, there would be an inevitability of catastrophic neurological consequence. This insult was gratuitous. It has not been pleaded that Mr Lee lacked the necessary surgical skills to carry out any procedure that might have been required to resect Daniel's tumour.
Mrs Jordan's evidence relating to the events of 1998 is partially inherently contradictory.

Mr Jordan

Mr Jordan said in his statement that:
51.I asked in words to the effect 'can you debulk the tumour' (the term ‘de-bulk’ I had heard in conversations with Drs Lee and Baker). Dr Lee said words to the effect 'it is not possible to remove the tumour surgically because it could paralyse Daniel'. Dr Lee said words to the effect 'the tumour is too inaccessible to reach surgically'. I recall him using a rough diagram to explain this. He told us of these matters in a manner of such certainty that I held a clear understanding and belief that surgery was not an option and would never be an option.
52.Dr Lee advised us to keep monitoring Daniel and that he would see him again in a few months.
Mr Jordan accepted in cross‑examination that the referral in 1998 to Mr Lee was to see if surgery was then appropriate following the lessening of the use of Daniel's arm. The reason for going back to Mr Lee stemmed from their consultations with him in 1996 that surgery to remove the tumour would be reviewed if Daniel's neurological condition deteriorated.
Mr Jordan said that Mr Lee was of the view that surgery was not then appropriate. He said that Mr Lee preferred 'to wait and see'. The prospect of surgery was to be assessed again if Daniel's neurological condition deteriorated.

Mr Lee

For reasons set out by Mr Lee in his letter to Dr Baker dated 20 May 1998, he suggested waiting a couple of months to see if the cyst continued to enlarge. In that letter, Mr Lee wrote about his discussion with Daniel and Mr and Mrs Jordan that day concerning bulk resection of the tumour as follows:
The question arose in discussion about bulk resection of the tumour. I told them that this could be undertaken but that there is a very risk (probably more an inevitable fact than risk) that he would be left with a hemiparesis.
He may be lucky that it may be possible to leave behind a thin rim of circumferential tumour but the unknown factor is the degree of vascularity and if to control the haemorrhage, resection is required to the margins of the tumour which will imperceptibly merge into functioning brain then he will have a problem. Again I would not advise such a procedure at this stage but I think it could be considered if his clinical state deteriorates to the extent of being life threatening.
…

The oral submissions from Daniel's counsel in support of this written submission were that adjuvant therapy, or expectant therapy, eschewed a cure for Daniel's tumour and that by proceeding with such treatment, Mr Lee and Dr Baker instead opted for Daniel's deterioration and death. Again, deterioration and death is the basis for the submission. I have previously rejected this.
This submission ignores the desirability of ascertaining how the tumour was behaving in circumstances where it was large and originated in the basal ganglia but yet, it caused little in the way of symptoms. The submission also ignores Dr Teo's evidence that such tumours are typically indolent, their behaviour is unpredictable, and they need to be assessed on an individual basis. They can also cease growing of their own accord, as appears to have been the case with the tumour and the leptomeningeal spread. Professor Kellie believed that the disease stabilisation was most likely due to the biology of the tumour.
It was the cyst which grew. Absent the growth of the cyst, then the high risk surgery of resection would probably have been avoided.
Daniel was to be kept under review.
The evidence does not support this third written submission. Indeed, the evidence is to the contrary as outlined above. Further, there was a 70 ‑ 80% chance of adjuvant therapy improving Daniel's clinical condition, even if it would not remove the tumour.
Mr and Mrs Jordan have accepted that in each of 1996 and 1998, the advice to not then proceed to surgery was that the potential benefits 'at that time' were outweighed by the risks of surgery. Further in 1999, the advice was to proceed to aspirate the cyst. But in 2000, Mr Lee did attempt to decompress the tumour, which was still relatively indolent in nature. It was the cyst which caused deterioration.
This was therefore an evolving situation requiring fresh clinical judgments from time to time. Chemotherapy was provided in 1996 and 1997. In 1998, Mr Lee decided to keep Daniel under review. The cyst was aspirated in 1999. Radiotherapy was provided in late 1999 and early 2000. Decompression was attempted in 2000. Each review during the 1996 to 2000 period resulted in a fresh clinical judgment appropriate for each review. On each review between 1996 and 1999, Mr Lee was justified in believing that resection was an unreasonable operation. The only evidence calling for resection is that provided by Dr Teo, but he has not examined Daniel's circumstances in each of the years prior to 2000, save to say that Daniel was dying and in extremis in 1996 and that claim has been rejected.

Sixth written submission

The sixth submission provides:
Specific enquiry was made of treating team member Baker as to whether anyone else anywhere could do what Lee maintained could not be done ‑ or not be done with sufficient safety that he would endorse it ‑ namely radical excision.
The first point to be noted is that this is a specific enquiry of Dr Baker, and not Mr Lee. The submission infers that no specific enquiry was made of Mr Lee as to surgery by another neurosurgeon, acting reasonably, in the form of radical excision.
Secondly, Mr and Mrs Jordan were aware that Dr Baker was the oncologist, not the neurosurgeon, and that he could not give neurosurgical advice as previously noted. They did not rely on him for surgical advice.
Again, this submission is based on the need for radical excision, and as previously noted, Mr Williams said such was required because of the death sentence. However, if the death sentence is removed, then the need for radical excision is removed and this submission falls away. In any event, specific inquiry was not made of Dr Baker about radical excision whether locally or elsewhere. The question posed according to Mr and Mrs Jordan was whether this kind of tumour had been successfully treated elsewhere. The form of treatment was not specified.
Further, the sixth submission follows the fourth and fifth submissions of Mrs Jordan's experience in oncology, the death of a friend from a brain tumour and that money was not an impediment to treatment. But, as previously noted, there is no evidence, that, either Mr Lee or Dr Baker were aware of these facts.
Finally, I have previously found that a general question of the kind underpinning the sixth submission was not asked, or if it was, then, Dr Baker did not answer it other than to give general background information to Mr and Mrs Jordan about Princess Margaret Hospital.
In the circumstances, neither Mr Lee nor Dr Baker breached their respective duties of care.

Causation

Notwithstanding the finding that Daniel has not proved the breach of any duty of care, I will deal with causation in any event.

The pleading and the evidence

The pleading is that if Mr Lee and Dr Baker had not breached their respective duties of care, then Mr and Mrs Jordan would have made reasonable inquiries about other neurosurgeons who, acting reasonably, would have performed surgical resection of Daniel's tumour.
It is said that reasonable inquiries would have located a neurosurgeon who would have performed that resection, such that Mr and Mrs Jordan would have consented to such a procedure in 1996, 1998 and 1999 and had Daniel undergone that resection, then the tumour would have been completely resected, or at least 95% would have been resected, and his current disabilities would have been avoided or their severity lessened. Daniel would also have avoided unnecessary medical treatment.
Advice to inquire about surgeons who would have performed resection of Daniel's tumour assumes the reasonableness of the surgery and that other surgeons were performing such surgery. I have previously found that such surgery would not have been reasonable prior to 2000.
There was no evidence from any neurosurgeon who was surgically removing tumours of the type Daniel had in 1996, save for Dr Teo, who said that he and other unnamed surgeons in unnamed hospitals in the United States of America were performing such surgery. Dr Teo did not give any detail of these patients and of this surgical work. Without any explanation as to how Dr Teo believed that he could have successfully resected Daniel's tumour prior to 2000, I am not prepared to accept this evidence, especially given the findings about other aspects of his evidence.
However, Mr Lee did not know of any such surgeon and none of the defence experts knew of a surgeon who was resecting tumours of the kind that Daniel suffered during this period.
The contemporaneous literature does not support a claim that neurosurgeons were removing tumours of the kind Daniel suffered during 1996, 1998 and 1999.
The evidence is therefore not persuasive of the view that there were in fact surgeons who, acting reasonably, would have resected a tumour of the kind Daniel had, prior to 2000.
Dr Baker is an oncologist and would not advise on the reasonableness of surgery. Dr Baker did not give surgical advice. That was accepted by Mr and Mrs Jordan. They did not rely on Dr Baker for surgical advice. They knew that he deferred to Mr Lee on matters surgical. There can therefore be no reliance by them upon Dr Baker in this regard.

Daniel's so‑called death sentence

The requirement to excise Daniel's tumour was based on Mr and Mrs Jordan's erroneous belief that without such excision, Daniel would deteriorate and die. I have previously commented on this. Their misunderstanding removes the need for surgery to have been the first choice of treatment in 1996, 1998 and 1999.
Had Mr and Mrs Jordan not come to their incorrect belief that their son was facing a death sentence then, the probability is that they would have accepted that, in 1996 and 1998, the risks of resection outweighed the benefits, but if Daniel's condition deteriorated, then resection could again be reconsidered. They would also more probably have accepted aspiration of the cyst in 1999 as a preferential treatment to resection.
Further, apart from Dr Teo's evidence that Daniel was dying and in extremis in 1996, which I have rejected, there is no evidence that, in 1996, 1998 or 1999, any surgeon would have advised Mr and Mrs Jordan that Daniel's death was inevitable. It is likely that such a surgeon would have advised that it would be impossible to remove the totality of the tumour, but in any event, surgery could not remove the leptomeningeal deposits.
In the circumstances, the requirement for surgery was predicated upon the inevitable deterioration and death of Daniel from his tumour and that was a wrong premise. Had Mr and Mrs Jordan not had that misunderstanding, then it is unlikely that they would have consented to surgical resection of the tumour in 1996, 1998 and 1999 given the high risk nature of the surgery in terms of risks outweighing the benefits.
Dr Teo's successful 2000 surgery cannot be used to cover any deficiencies in Daniel's case for the years prior thereto.

Would earlier resection have avoided Daniel's current disabilities?

Further, I am not persuaded that Daniel's current disabilities would have been avoided or their severity lessened had the successful 2000 surgery been carried out at an earlier time.
There is no evidence of any growth in the tumour between 1996 and 2000, or at least of any real growth. Without seeking to be indifferent to Daniel's unfortunate circumstances, it is perhaps fortuitous that the cyst grew to enable access through it to the tumour in 2000.
The risks of resection of the tumour between 1996 and 1999 inclusive outweighed the benefits. The risks were high in comparison to the risks emanating from growth of the cyst which was aspirated in 1999 as a less risky surgical procedure than tumour removal.
I am not persuaded, that, in this circumstance, Daniel has suffered loss by reason that one price of not undergoing surgical resection in 1996 and 1998 was the risk of growth in the cyst. The risks associated with removal of the tumour far outweighed the risks of growth of the cyst and subsequent surgery to aspirate that cyst in 1999.
Dr Teo said in his first report and in his substance of expert evidence that Daniel's left sided neurological problems would have been avoided if Daniel had proceeded to surgery earlier.
Professor Drake believed that resection of the tumour prior to 2000 would almost certainly have caused hemiplegia. Professor Silbert was of the same view and he was not cross‑examined about this.
Professor Drake said that at presentation in 1996, the tumour had penetrated the pineal region and the internal cerebral veins. Hence the tumour could not be totally removed. It is almost certain that the same inability to remove the tumour would have been encountered at any stage between August 1996 and June 2000.
Professor Drake believed that the post‑operative images following Dr Teo's surgery indicate that the right inner capsule and portion of the right basal ganglia were removed during his surgery. The inner capsule or basal ganglia may have been destroyed by the tumour. There are a number of possibilities, however any major resection would have put Daniel at the risk of a hemiplegia whether or not the inner capsule and basal ganglia were removed. There is no need to remove the basal ganglia to have a post‑operative hemiparesis. It is only necessary that the surgeon operate in the region. That can be sufficient to cause post-operative hemiparesis or hemiplegia.
In his report, Professor Drake said Dr Teo's surgery caused Daniel's left sided hemiplegia, but in oral evidence, he said he did not know that that surgery had not caused any additional left sided weakness. Professor Drake would also respect Dr Teo's opinion that if Daniel's tumour had been resected prior to him developing hemiparesis, then he probably would not have developed it.
Professor Stokes said that even today, most neurosurgeons would be circumspect about operating on a tumour like Daniel's and that, no doubt, is for the very good reason of the high risk of morbidity. Mr Lee's evidence was that it was more of an inevitability than a risk. There is a real likelihood of morbidity from this kind of surgery.
Given the radiological findings after Dr Teo's surgery as referred to by Professor Drake and the medical evidence, I am not persuaded that had the surgery performed by Dr Teo been performed at any prior time, then that surgery would not have been likely to have caused Daniel's left sided hemiplegia and paresthesia.
I am not persuaded that the delay in Daniel proceeding to surgery until 2000 was the cause of his left sided hemiplegia or paresthesia.
Further, Professor Silbert gave evidence that Daniel's proprioceptive impairment is the principal cause of his left arm and ankle disability. Professor Silbert was not challenged on these matters. The impairment was neither present at review in August 1999 by Dr Gubbay nor, it would seem, was it present at examination by Dr Baker on 28 April 2000.
I am not persuaded that the proprioceptive impairment was not caused by Dr Teo's surgery.
I am not persuaded that had Daniel undergone surgical resection any earlier, then he would not have been substantially worse off from the date of such surgery.
Daniel claims that he suffered cognitive impairment following Dr Teo's surgery, but he would not have done so had resection occurred earlier. There is no evidence to support this claim. Indeed, the only evidence is that Daniel suffered his cognitive and memory impairments after Dr Teo's surgery and those impairments lasted for approximately three months.
Professor Drake said that there would have been cognitive and memory impairment from any earlier attempted resection because the tumour, at presentation in 1996, involved both the right fornix and the hypothalamus which are both important structures for memory. The films after Dr Teo's surgery indicate resection in the region of the hypothalamus and Professor Drake could not see the right fornix, which must have been resected or have been very atrophic.
The probability is, that, if the kind of surgery Dr Teo performed had been performed earlier, then the same result would have occurred.
Complaint is made of Daniel receiving an unnecessary cerebral shunt, chemotherapy, radiotherapy and unnecessary surgical treatments. However, my finding is that surgery by way of resection in 1996, 1998 and 1999 would have been unreasonable. Hence, Daniel was referred for adjuvant therapy and Mr Williams conceded that the treatment provided to Daniel by Mr Lee was consistent with that which would have been recommended and undertaken by a respectable body of neurosurgeons at the relevant times. Likewise, he made the concession in respect of the oncological treatment provided by Dr Baker.
In any event, given the leptomeningeal deposits, and the state of the medical knowledge prior to 2000, Daniel would have required chemotherapy notwithstanding resection of the tumour prior to 2000.
Further, even in 2007, Dr Kelly noted in his publication that tumours larger than 2 cm in size were first biopsied before proceeding further. It was during Daniel's biopsy that the shunt was inserted. The only other surgery undertaken on Daniel was the 1999 aspiration of the cyst, which was unremarkable and caused no discomfort or deterioration in Daniel's condition.
In addition to this, there is no evidence, other than that agreed between the parties, that Daniel has suffered any economic loss by reason of his present incapacity. Indeed, he would have suffered such incapacity in all likelihood had he undergone earlier surgery and accordingly, there can be no economic loss other than as agreed.

Quantum

Again, notwithstanding my previous findings, I will set out the quantum that has been agreed between the parties as outlined in the correspondence between them.
The claimed losses are as follows:
1.increased tumour growth and/or growth of the cyst around the tumour between 1996 and 2000;
2.left sided hemiplegia;
3.left sided paresthesia;
4.cognitive impairment;
5.impairment of memory;
6.unnecessary cerebral shunt;
7.unnecessary chemotherapy treatment;
8.unnecessary radiotherapy treatment;
9.multiple unnecessary surgical treatments;
10.pain and suffering;
11.emotional distress;
12.loss of enjoyment of life; and
13.economic loss.
If Mr Lee and Dr Baker breached their duties of care which caused all of the losses claimed in the statement of claim, then the quantum of damage for all of such loss was agreed at $400,000.
It was further agreed, that, if it had been proved that Mr Lee and Dr Baker breached their duties of care and that those breaches caused the losses set out in 2 and 6 – 13 inclusive, the quantum of damage for that loss was agreed at $150,000.
Further, if it had been proved that Mr Lee and Dr Baker breached their duties of care causing the losses at 6 – 13 inclusive, the quantum of damage for all of that loss was agreed at $90,000.
It was not suggested that Daniel has suffered any loss other than the above. Further, it was agreed that the only findings to be made on loss and damage and the quantum thereof are those outlined above.

Conclusion

The comments of McLure J in Sheppard v Swan are apt in the present case.
On proper analysis, this is not a duty to warn case. The duty to warn relates to communicating relevant risks of adverse outcomes of proposed treatment (see also Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (supra)). However, the appellant says that the policy of patient autonomy underlying the duty to warn gives rise in this case to a duty on the respondent to offer or inform the appellant during the course of labour of the option of a caesarean section. The formulation of the duty is too specific. It is necessary to step back and take a broader perspective starting with the High Court formulated duty on a medical practitioner to provide information to a patient in an appropriate case, mindful of the public policy in favour of patient autonomy. However, I accept as a general rule that in ordinary circumstances a medical practitioner owes a duty to advise his or her patient of the medical or treatment options available to achieve the relevant outcome. I acknowledge that a statement at this level of abstraction is of little assistance in answering the duty question in this case. I also accept that at least some of the principles developed in relation to the duty to warn would apply by way of analogy. In particular, the timing and content of any advice the subject of the duty will be affected by objective and subjective considerations [42].
To retrospectively impose a duty mandating the giving of advice between 1996 and 2000 that other neurosurgeons, acting reasonably, would have resected Daniel's tumour would be wrong on the facts of this case. Such other neurosurgeons would not have been acting reasonably in resecting Daniel's tumour. Further, there is no or no sufficient evidence that there were then such surgeons resecting tumours of the kind Daniel suffered. Given that, it would be too abstruse to impose a duty to advise that an unnamed and unknown surgeon somewhere in the world, acting reasonably, would have resected the tumour.
Further, to impose a duty to have inquired where radical resection might have been reasonably undertaken in the circumstances of Daniel's tumour would be too onerous and productive of great uncertainty as to the duty of care owed by a medical practitioner to the patient.
Apart from Dr Teo saying that he would have proceeded to surgery, no other medico could name such a surgeon who would have proceeded to surgery prior to 2000. Not even Dr Teo offered another name, but he said that he and other unnamed neurosurgeons from unnamed institutions performed such surgery in the USA and that a large body of neurosurgeons would have recommended surgery, no doubt, because he said it was the best curative treatment. Nothing is known about the neurological condition of any such patients' pre and post‑surgery neurological condition. Nor is anything known of the details of their tumours. I am not persuaded by that evidence.

Clearly, Mr Lee did not consider surgery to be a reasonable medical procedure in Daniel's particular circumstances. How could he then, in all conscience, advise that other surgeons, acting reasonably, resect deep brain tumours of the kind suffered by Daniel, when he (and all the other experts, except Dr Teo, whose evidence was not persuasive) advised against surgery in 1996 and 1998? In 1999, it could have been considered, but aspiration of the cyst was the preferred and safer course given that it was the cyst which was the cause of Daniel's neurological deterioration.
In the end, even Dr Teo recognised that not all tumours should be the subject of attempted resection. Moreover, between 1996 and 2000, the literature was still debating the subject and Professor Stokes indicated that the literature really only came together in 2007 when the 'sentinel' publication by Dr Kelly was published.
In any event, Mr Williams did not require that such a duty of actual referral to another neurosurgeon should be imposed. He simply wanted disclosure of the fact
'that there were surgeons who were of the radical excision as the first option of treatment school' (ts 905).
It would be wrong to suggest to a patient, as Mr Williams submitted, in respect of whom a neurosurgeon considers surgery to be inappropriate in the individualised circumstances of that subject patient due to the likely risks outweighing the benefits, that nonetheless, the patient should go to some surgeon somewhere to excise the tumour, when the surgeon cannot identify such other surgeon.
This is especially so when the patient's parents are desperate for the excision because of their mistaken belief, not known to the referring neurosurgeon, that their child's death is inevitable. In these circumstances, such parents might just find their 'cowboy', as Mr Williams described surgeons who might act unreasonably.
Finally, it is well to remember that this trial came on for hearing in 2011, more than 15 years after Daniel and his parents first consulted Mr Lee and Dr Baker. As Gleeson CJ said in Rosenberg v Percival [2001] HCA 18:
In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action [16].
The same can be said for the position of not pursuing a particular course of action when there were, at the time, strong reasons for not doing so. There is a potential danger in this case of deciding it on the basis that, later, Dr Teo successfully operated on Daniel in 2000.
Here, the facts of this trial relate to the period from 1996 to 2000 inclusive. Of course, in 2000, Mr Lee did attempt decompression of the tumour. He had planned to decompress as much of it as possible by gaining access to the tumour through the cyst That probably would have required multiple surgeries as Dr Teo found. Previously, access through the cyst had not been available. It was through no fault of his own doing that the surgery in 2000 was terminated. There is no complaint against Mr Lee in respect of the misdiagnosis of the tumour.
However, the fact that Dr Teo was successful at surgery in 2000 does not mean that Mr Lee and Dr Baker were negligent in any way, either as alleged or at all. Dr Teo's successful surgery in 2000 does not of itself mean that, prior to 2000, Mr Lee and Dr Baker should have advised Mr and Mrs Jordan that other surgeons were resecting thalamic tumours. First, other surgeons who might have proceeded to resection would not have been acting reasonably. Secondly, there is a potential danger that to now require Mr Lee and Dr Baker to have recommended resection would be to view not their conduct, but Dr Teo's successful surgery through the prism of hindsight and to attach that successful surgery to Mr Lee's advice, so followed by Dr Baker, to earlier times when Daniel's relevant neurological circumstances were quite different in each of the different years between 1996 and 2000. Further, it was simply not possible to know in advance what would result from the resection of Daniel's tumour at any time, including the 2000 surgery with Dr Teo. Such surgery was a major neurosurgical procedure and results can never be known in advance.
Daniel's claim must be dismissed against Mr Lee and Dr Baker.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established