Kaye v Hoffman
[2009] TASSC 5
•29 January 2009
[2009] TASSC 5
CITATION: Kaye v Hoffman [2009] TASSC 5
PARTIES: KAYE, Kylie Marie
v
HOFFMAN, Linda
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 179/2008
DELIVERED ON: 29 January 2009
DELIVERED AT: Hobart
HEARING DATE: 15 October 2008
JUDGMENT OF: Crawford CJ, Evans and Porter JJ
CATCHWORDS:
Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Knowledge of material facts – Whether reasonable steps taken to ascertain facts – Extension of period to three years commencing on "date of discoverability" – When the plaintiff knew or ought to have known that personal injury had occurred and that it was attributable to the conduct of the defendant – Misdiagnosis of tumour – What the plaintiff ought to have known.
Aust Dig Limitation of Actions [51]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC and M A Hartley
Respondent: K B Procter SC
Solicitors:
Appellant: Hugh Murray
Respondent: Murdoch Clarke
Judgment Number: [2009] TASSC 5
Number of paragraphs: 93
Serial No 5/2009
File No 179/2008
KYLIE MARIE KAYE v LINDA HOFFMAN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
EVANS J
PORTER J
29 January 2009
Order of the Court
Appeal dismissed.
Serial No 5/2009
File No 179/2008
KYLIE MARIE KAYE v LINDA HOFFMAN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
29 January 2009
The appeal concerns whether a judge erred by dismissing an appeal from the Master (as he then was). As a result of the dismissal, the appellant is prevented by the Limitation Act 1974 from proceeding with an action against the respondent for damages for personal injuries.
By a writ, the appellant sued the respondent on 23 November 2001 for those damages. In her statement of claim she alleged that in late 1993 or early 1994 she consulted the respondent, an endocrinologist, because of severe headaches and nausea, and that the respondent made a misdiagnosis that she was suffering from a pituitary tumour and commenced treating her with a drug known as Parlodel, which caused her to suffer side effects. She also alleged that other consequences flowed from the misdiagnosis. Her claim was based in negligence and breach of contract. There is no real dispute that any cause of action she has against the respondent accrued in or about January or February 1994.
The Limitation Act, s5, provided for a three year limitation period from the date of the accrual of the cause of action. Judges had power to extend that time to a maximum of six years after that accrual. It follows that when the writ was issued, the action was absolutely barred because it was commenced over six years after the accrual of the cause of action. The respondent pleaded the bar in her defence.
On 1 January 2005, the Act was amended by the Limitation Amendment Act 2004. The operation of relevant amendments was retrospective. Inserted into the Act was s38A, subs(1) of which permitted the appellant to apply for "an extension of the period of limitation in section 5(1) to 3 years commencing on the date of discoverability". I will say more later about the legislation and the meaning of the expression "date of discoverability".
After the Act was amended, the appellant applied for an order that the time limited for commencing the action be extended to 26 November 2001. She claimed that the "date of discoverability" was 26 November 1998. The respondent's case was that it was well before that date and that for that reason, the application had to fail.
The application was heard by the Master. In comprehensive reasons for judgment, he determined that the appellant had not discharged her onus of proving that the date of discoverability was within the period of three years prior to the issue of the writ. For that reason, the application was dismissed. However, for completeness, the Master determined that if the date of discoverability had been within three years of the issue of the writ, he would have exercised the discretion given to him by s38A in favour of the appellant and extended the time for the commencement of the action to the date of the writ.
The appeal to this Court is on five grounds. They are set out in par77 of these reasons. Some of them assert that erroneous findings of fact were made by the learned judge. One of them, ground 1B, asserts that the learned judge erred in not finding that the Master erred in concluding that the appellant had not discharged her onus of proof that the date of discoverability that her personal injury was attributable to the defendant was not earlier than 23 November 1998. If that ground fails, the appeal must fail.
The reference to the date of discoverability in the Act
By s2(1), the date of discoverability, in the case of an action for damages for personal injuries, is defined as meaning the date when the plaintiff knew or ought to have known that personal injury had occurred, that it was attributable to the conduct of the defendant, and that it was sufficiently significant to warrant bringing proceedings.
The Master held that the reference to the conduct of the defendant in the definition of the "date of discoverability" is a reference to the conduct alleged in the action and is not a reference to conduct that must be proved on the hearing of the limitation application. The appeal does not challenge that determination.
The Master also held that the reference to conduct is to conduct alleged which, when coupled with the alleged injury, creates a cause of action. In other words, it is a reference to the whole of the conduct upon which the cause of action is based and not merely to conduct to which injury can be linked. The Master concluded that the conduct of the defendant in the definition is a reference to the alleged conduct which is the subject of the claim or prospective claim and not merely a reference to the bare act or omission from which injury resulted. It is a reference to the alleged wrongful conduct. The appeal does not attack those determinations.
The critical question before the Master was whether the appellant knew or ought to have known before 23 November 1998 that the alleged diagnosis by the defendant that she had a pituitary tumour was wrong. Following an extensive review of the evidence, the Master found that the appellant did not have actual knowledge that the diagnosis was wrong until 26 November 1998. That finding is not challenged.
The Master next considered whether the appellant ought to have known prior to 23 November 1998 that the diagnosis of a pituitary tumour was wrong and found that she had not proved the contrary and in fact, that she ought to have known that the diagnosis was wrong well prior to that date. It is the validity of those findings which is central to the appeal. The determination of it requires a consideration by this Court of the evidence that was before the Master. Before turning to that, there is one other matter that arose in the case I will mention.
The Master considered what he perceived to be a conflict between authorities in New South Wales and the United Kingdom concerning whether, when determining what a person ought to have known, account must be taken of the actual qualities of the person.
In New South Wales the capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, is judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable person. What a person ought to have known or been aware of for the purposes of the Limitation Act 1969 (NSW), s60I(1)(b), must take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances. Telstra Corporation v Rea [2002] NSWCA 49; Commonwealth of Australia v Smith [2005] NSWCA 478.
The Master thought that in the United Kingdom, under different legislation, the test is more restrictive and that in part, it was explained by Baroness Hale of Richmond in Adams v Bracknell Forest Borough Council [2005] 1 AC 76 at par 88: "Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection."
The Master thought that the New South Wales legislation was significantly different to the Act of this State and preferred the view of Baroness Hale. Accordingly, on the question of constructive knowledge, he considered the proper approach to be as follows:
(a)Firstly, consideration needs to be given to when objectively it would be reasonable to expect medical or other advice to have been sought.
(b)Secondly, whether, if at that time, advice had been sought, it would have resulted in the plaintiff acquiring the relevant knowledge.
(c)Thirdly, if a plaintiff had characteristics which affected his or her capacity to acquire relevant knowledge, the "date of discoverability" will be the date upon which it might reasonably have been expected that the relevant knowledge would have been acquired having regard to those characteristics.
(d)Fourthly, characteristics of a plaintiff which only go to his or her inclination to acquire relevant knowledge, will not be taken into account.
However, ultimately the Master concluded that no matter which of the two views was preferred, the appellant had not discharged her onus of showing that the date of discoverability was within the period of three years before the issue of the writ.
On the appeal from the Master, the learned judge disagreed with the Master's preference for what he thought to be the position in the United Kingdom. She did not think that the differences between the legislation of New South Wales and this State were significant and preferred the New South Wales approach to the interpretation of constructive knowledge for the purpose of determining the date of discoverability. The appeal does not attack that conclusion.
The facts found by the Master
Between pars37 and 136 of his judgment[1], the Master reviewed much of the evidence and made findings of fact. However, although there were many areas of contention in the evidence that were apparent from the review, the Master did not resolve all of them. I will summarise some of the review and findings of fact. I will also refer to some evidence not mentioned by the Master and make some findings of my own.
[1] Kaye v Hoffman [2007] TASSC 31
The appellant was 18 years of age when she first consulted the respondent. Before she did so, she attended on a general practitioner, Dr Booth, at the Northgate Medical Practice, complaining of persistent galactorrhea (inappropriate lactation) and irregular periods despite being on a contraceptive pill. Her evidence was that she also complained of headaches and nausea but that seems unlikely, for Dr Booth had no note or recollection of it and made no mention of it in his letter of referral to the respondent. It also appears that the respondent made no record of complaints of headaches and nausea at that time.
Dr Booth arranged for the appellant's prolactin level to be tested. Prolactin is a hormone produced by the pituitary gland in the brain. A high prolactin level would be consistent with galactorrhea. On 13 December 1993, a pathology report showed that the appellant had what the Master found to be an abnormally high prolactin level and that she was not pregnant. In par35 of these reasons I refer to evidence about the appellant's prolactin levels in more detail.
On 15 December 1993, Dr Booth wrote a letter of referral to the respondent explaining that the appellant complained of galactorrhea and irregular periods, enclosing the pathology report, and enquiring whether her hyperprolactinaemia required investigation. Dr Booth's evidence was that the reason for sending the appellant to the respondent was that they needed to exclude that she had a pituitary tumour, for it could account for her symptoms. He said that he may have told the appellant that they were trying to exclude a pituitary tumour.
The appellant had formal consultations with the respondent on four occasions only. They were on 19 January, 24 February, 23 March and 19 May 1994. The appellant's evidence of them was to a large extent unclear and uncertain. In many respects she claimed to be unable to remember what took place at each of them. It is clear from the evidence that the respondent gave her a drawing of a female body after making notes on it. Her evidence was that the document was given to her at the second consultation but she accepted that she might be wrong. There is no doubt from what was written on it that it was given to her at the first consultation on 19 January 1994.
It was also the appellant's evidence that at the February consultation, the respondent told her that she had a pituitary tumour and prescribed Parlodel for the purpose of shrinking the tumour. Her parents' evidence was also that the respondent told her that she had a pituitary tumour. The appellant said that the respondent did not tell her that the tumour was cancerous. She claimed to be unable to remember whether she had thought about the possibility of it being cancerous.
The respondent's evidence was that at no time did she advise the appellant that she had a tumour. However, she accepted the possibility that, like Dr Booth, she told the appellant that an investigation was needed to ascertain whether she had a pituitary tumour, for it is one of a number of potential causes of hyperprolactinaemia.
The Master considered that he should make no finding about whether the respondent advised the appellant that she was suffering from a pituitary tumour. His view was that it was a fact that should be determined at the subsequent trial of the action, if it eventuated. Instead he assumed, for the purpose of determining the application for an extension of time, that the appellant's allegation was true, for it was the alleged misdiagnosis of a tumour that was the main basis of the appellant's action.
The drawing of a female body that was given to the appellant by the respondent on 19 January 1994, contained notes written on it by the respondent as she explained things to her. It showed the location of the pituitary gland. From the word "Parlodel" was an arrow leading to the words "lower prolactin" and another leading to "shrinks area of overreacting in the pituitary". There was a note as to the dosage of Parlodel the appellant was to take, a note requesting her to have a further blood test in about a month's time, and a note to see the respondent again at the end of February. The respondent referred her for an MRI of her head. There was a discussion at that consultation about the appellant's family medical history, including reference to her having a cousin suffering from an occipital brain tumour.
On the same day as the first consultation, 19 January 1994, the respondent sent a letter to Dr Booth. She referred to the appellant's complaints of mild hyerprolactinaemia and galactorrhea and said that the appellant would have an MRI, commence Parlodel at a particular dosage and be reviewed in four weeks' time or earlier if necessary. Parlodel was a drug that was commonly prescribed for hyperprolactinaemia and galactorrhea.
The MRI was carried out on 18 February 1994. The radiologist was asked whether there was evidence of a pituitary adenoma. A tumour that arises in a gland is often referred to as an adenoma. The radiologist reported that the pituitary gland was not enlarged and no lesion was detected within it. In other words, no tumour was found.
On 23 February 1994, a pathologist reported to the respondent that a blood test that day revealed that the appellant had an abnormally high prolactin level.
On the following day, the appellant returned to see the respondent. It was not the respondent's practice to keep detailed notes of consultations, apart from what she recorded in the subsequent letter she would send to the referring medical practitioner. The respondent reported by letter to Dr Booth that day that the MRI scan was normal but she had explained to the appellant that her diagnosis was of a small area of prolactin hyper-secretion and that it was an ongoing problem. She also reported that the appellant had stopped taking Parlodel after two or three days because of dizziness and nausea and that following a discussion between them about the matter, the appellant was willing to try a reduced dose in view of the positive effects of Parlodel on prolactin hyper-secretion, and to see the respondent again in three months' time. There was evidence from a Dr Murray that a reference to a small area of prolactin hyper-secretion might be indicating that there was a micro adenoma. However, the respondent's evidence was that she was not intending to indicate that. She said that prolactin hyper-secretion only came from the anterior lobe of the pituitary gland.
On 10 March 1994, the appellant presented at the Northgate Medical Practice complaining that for the previous two weeks she had been vomiting. The doctor who saw her noted that she was on Parlodel. It is unclear from the medical notes made, but it appears that it was suggested to the appellant that she return to see the respondent. That is what she did on 23 March 1994 concerning her nausea and inability to tolerate Parlodel. The respondent decided to try the anti-nausea drug Maxolon in conjunction with Parlodel. The respondent reported by letter to Dr Booth that day that the appellant had been tolerating Parlodel poorly and had been off it for a week. She said that the hyerprolactinaemia was likely to be an ongoing problem and that the appellant had decided to persist with Parlodel in conjunction with Maxolon. The possibility was mentioned that the appellant would have to stop using Parlodel if she could not tolerate it in any form. The respondent said that the prolactin level should be monitored every three months, there should be another MRI in February 1995, and the appellant should continue to see Dr Booth in the interim as necessary.
On 28 March 1994, the appellant presented at the Accident and Emergency Department of St Helen's Hospital because of an injury to her hand playing netball. Her history was recorded by the treating doctor as including that there was a "query prolactin adenoma, MRI negative Doctor Hoffman".
On 19 May 1994, the appellant returned to see the respondent for the three monthly review as arranged at the February consultation. The respondent's report by letter to Dr Booth that day included that the appellant was tolerating Parlodel in conjunction with Maxolon. As Maxolon had a tendency to increase prolactin, the respondent had asked the appellant to try a half dose of Parlodel without Maxolon and to take Maxolon only if she had to. She had suggested to the appellant that she return for review in September with a repeat MRI prior to that. It was noted that the appellant was having irregular periods and that she was going to take a particular drug for contraception.
The Master did not refer to some of the evidence about the appellant's prolactin levels. The pathology report for Dr Booth of the blood sample taken on 10 December 1993 revealed a prolactin level of 569mU/L, which was marginally above the normal range for a woman who was not pregnant. The pathology report for the respondent of a blood sample taken on 23 February 1994 revealed a prolactin level of 716mU/L, which was substantially greater and above the normal range. However, a pathology report of a blood sample taken from the appellant on 20 May 1994, again at the request of the respondent, revealed that her prolactin level was 540mU/L, which was within the normal range.
As requested by the respondent, the appellant submitted to an MRI in August 1994. On 15 August 1994, the radiologist reported to the respondent that there was "no radiological evidence of a pituitary micro adenoma". It is noteworthy that the respondent had received reports of consecutive MRI scans, one on 18 February and the other on 15 August, and both of them stated that there was no radiological evidence of a micro adenoma. By the time of the second of those reports, the respondent would also have received the pathology report of the blood sample taken on 20 May that revealed that the appellant's prolactin level was within normal limits.
Although the appellant went to the trouble of submitting to the further MRI in August 1994, she did not arrange for a consultation with the respondent in September, as had been requested by the respondent the previous May. In fact she had no further formal consultations with the respondent. She made no inquiry about the result of the May pathology or the August MRI. No doubt if she had done so she would have been advised that for a second time, an MRI had revealed no evidence of a tumour in the pituitary gland and that the pathology report had revealed that her prolactin level had dropped to within normal levels.
She claimed to be unable to remember why she did not return to see the respondent as she had been directed. In fact she said that she was unable to remember being told by the respondent to have the MRI in August and to see the respondent soon after. She advanced as the only possible reason she could think of for not seeing the respondent was that Parlodel was making her ill and causing her to have so much time off work, so that she could not afford to take any more time off. It was an unconvincing explanation and could not lead to a finding of fact that it was the reason. In fact she also advanced as possible explanations that "something had happened or I had another appointment, I don't know".
There is no doubt that the respondent prescribed Parlodel for the appellant at the first consultation on 19 January and that they resolved that the appellant would continue with the drug at the consultations of 24 February, 23 March and 19 May 1994. There was no evidence who prescribed it for her thereafter apart from Dr Booth on 27 May 1996. Her evidence was that she continued taking it on and off until after she moved to Shepparton in Victoria in early 1997. There was no suggestion that it was prescribed for her by the respondent after 19 May 1994. It was the evidence of Dr Murray that although a prescription could be valid for 12 months, it was usual that a prescription for Parlodel would be valid for six months only, due to governmental control.
It was the evidence of the appellant that the respondent told her that while she was taking Parlodel she could not become pregnant. However, she returned to the Northgate Medical Practice on 17 November 1994 because she was pregnant. She told Dr Pointon, a general practitioner, that she had been suffering from nausea and dizziness over the past two weeks. She made no inquiry at that time about the results of the August MRI. The Master noted that the appellant's evidence that Dr Hoffman had told her that she could not become pregnant while taking Parlodel was inconsistent with the respondent's letter to Dr Booth of 19 May 1994 in which it was said that the appellant was going to take a particular drug for contraception. The respondent's evidence was that she did not advise the appellant that she could not become pregnant while taking Parlodel. According to Dr Murray, such advice would have been erroneous and in fact Parlodel tends to elevate fertility, so that the use of contraception would be wise if it was wished to prevent pregnancy.
On 20 November 1994, the appellant presented at the Accident and Emergency Department of the Royal Hobart Hospital complaining of suffering from vomiting over the preceding five days and that she had just discovered that she was pregnant.
According to a record made by the respondent, on 24 November the appellant telephoned her and informed her that she was pregnant. The respondent noted that fact and that she advised the appellant to see "now" Dr Booth "to fully discuss the issues", and to see the respondent within the next fortnight. She did not see the respondent as requested but she did see Dr Pointon that day. There was evidence from Dr Pointon that the appellant was a patient of the practice but not of a particular doctor at the practice. The appellant's evidence was that she had no memory of the telephone conversation with the respondent.
When she saw Dr Pointon on 24 November he wrote a referral for a termination of pregnancy. In cross-examination, the appellant said that she could not remember seeing Dr Pointon and she denied telling him that she did not want the pregnancy. She said that she could not remember saying to a general practitioner that emotionally, she could not cope with the pregnancy. In the light of what occurred it is likely that she did so.
On 25 November 1994 she saw an obstetrician, Dr Murray-Arthur, at the Royal Hobart Hospital, on the referral of Dr Pointon. There was no evidence from Dr Murray-Arthur. He noted that she needed a termination of the pregnancy to prevent a deterioration in her medical condition. He telephoned the respondent to discuss the matter. The respondent recorded that the appellant was "emotionally overwrought" and "hyperemesis" (vomiting a lot). The respondent agreed to join with Dr Murray-Arthur in certifying that the appellant should have a termination of her pregnancy. That day, they signed a certificate that recommended that the pregnancy be terminated to prevent substantial harm to the mental wellbeing of the appellant. The termination followed.
The appellant's evidence was that Dr Murray-Arthur recommended the termination because the baby was likely to be born with deformities because she had been taking Parlodel. There was no independent evidence to support that and in fact there was compelling evidence from the respondent that Parlodel was a safe drug for pregnant women.
There was no suggestion that at about the time of the termination of the pregnancy the appellant enquired about her pituitary condition.
Soon after the termination of pregnancy she fell pregnant again. That pregnancy went full term. There was no evidence that she consulted a medical practitioner about the possible effects her past consumption of Parlodel may have had in relation to that pregnancy. On 9 October 1995 she was admitted to the Royal Hobart Hospital for the birth of her daughter. The history, presumably given by her, noted that she had had an "enlarged pituitary gland".
The appellant's evidence was that while at hospital shortly following the birth, she happened to see the respondent, who "was doing rounds or was at the hospital for some reason and she came in to see me at my bed with my daughter". She said that she asked whether it was appropriate for her to be breastfeeding if she had been taking Parlodel. The respondent assured her that she could do so. The respondent has no recollection of that meeting. There was no evidence to suggest that the appellant enquired about her pituitary condition. When she was discharged from hospital on 13 October 1995, the notes included that she had a pituitary disorder that required further follow up.
On 8 December 1995 she presented with her baby at the Northgate Medical Practice where her baby was seen by Dr Margaret Williams. The doctor noted a history that the appellant had a pituitary tumour.
On 1 April 1996 she underwent another MRI. The radiologist reported that there was no evidence of a pituitary micro-adenoma and that the gland was of normal size and signal intensity. A copy of the report was sent to Dr Booth at the Northgate Medical Practice on 24 April 1996. On 27 May 1996 she saw Dr Booth at the Northgate Medical Practice. It was the first occasion upon which she had seen Dr Booth since 2 August 1994 when she saw him for an unrelated matter. It was Dr Booth's evidence in an affidavit that having received the report of the MRI scan of 1 April 1996 he advised the appellant that the pituitary scan was normal. His oral testimony was that he had no memory of saying that, but it is what he recorded in his notes at the time of the consultation. He went on to explain that in accordance with what he would normally have done, he would have said to her that there was no evidence of abnormal cells or growth in the pituitary. It is likely that he said something like that to her, given that he had received the MRI report and that he made a note, at the time of the consultation, "MRI normal".
At the consultation of 27 May 1996 Dr Booth provided the appellant with a repeat prescription for Parlodel. On 28 June 1996 the appellant was seen by Dr Pointon at the Northgate Medical Practice. He made a note that she had started taking Parlodel again and was suffering from nausea.
Some time in 1996 or 1997 the appellant ceased taking Parlodel. In mid-1997 she was transferred in her employment and moved to Shepparton in Victoria. In late 1997 or early 1998 she saw a general practitioner in Shepparton, Dr Pedrotti. She told him of the pituitary trouble she had in Tasmania and complained of suffering headaches. Dr Pedrotti referred her to Dr Murray, a Melbourne endocrinologist. In his letter of referral Dr Pedrotti said that the appellant had a history of hyperprolactinaemia that had been investigated elsewhere, that she was taking Parlodel but had stopped six months before because of nausea and that since then had noticed headaches, blurred vision, hair loss and galactorrhea.
The appellant saw Dr Murray on 15 January 1998. Dr Murray took a history from her and arranged for an MRI scan, measurement of her pituitary hormones and blood tests. She presented for the MRI scan on 19 January 1998. The reported result was that there was no radiological evidence of a pituitary micro-adenoma. The blood test showed that her prolactin level was within the normal range.
On 4 February 1998 Dr Murray informed the appellant that the MRI was clear, her prolactin level was normal and she did not have a pituitary problem at that time. He reported to Dr Pedrotti to that effect, adding that it was unclear as to whether the appellant ever had a pituitary micro-adenoma at all.
On 26 November 1998 the appellant returned to see Dr Murray because of continuing headaches which Dr Murray thought may have been migraine related. He referred her for a neurological assessment. In the meantime, Dr Murray had received information concerning her earlier medical history including her Tasmanian MRI results. He informed her that they did not support the diagnosis of a pituitary tumour and it was his view that she had never suffered from one.
The findings of the Master as to actual knowledge
The Master found that it was on 26 November 1998 that the appellant first learned that she had never suffered from a pituitary tumour and that the alleged diagnosis of a tumour was wrong. Although Dr Murray had known for some time that she had never had a tumour from information received by him from this State, he had not communicated it to the appellant earlier because there was no need for him to do so for treatment purposes.
It was found that the substance of the reports of the MRI scans in this State revealed that there was no evidence of a pituitary micro-adenoma but not that there was no micro-adenoma. There was evidence that over an extended period of time the appellant believed that she had a pituitary tumour. She told Dr Murray-Arthur that in November 1994 and she told Dr Williams the same in December 1995. It was found that although the evidence of Dr Booth was that he told her on 27 May 1996 that the MRI scan of 1 April 1996 was normal, there was no evidence that he told her that she did not have a tumour or that she had never had one. On that day he issued a repeat prescription for Parlodel.
The finding that she first had actual knowledge on 26 November 1998 is not challenged.
The findings of the Master as to constructive knowledge
The appellant bore the onus of proving that the date of discoverability was not earlier than three years before 23 November 2001, the date on which the writ issued. The Master found that she had not discharged that onus. He was not persuaded that a person in her position should not have been expected to have found out much earlier that her MRIs did not support a diagnosis of a tumour and that there had never been a tumour.
Concerning the period between February 1998 and November 1998, the Master was satisfied that the appellant did as much to enquire about her condition as would be the normal expectation for a person in her position. He accepted that Dr Murray had told her that he was waiting for the respondent to reply to a letter to sort out what the situation had been in Tasmania. He also accepted that thereafter the appellant made a number of telephone calls to Dr Murray's rooms but learned nothing because Dr Murray had not received a reply from the respondent. It turned out that the respondent had not received Dr Murray's letter because it was incorrectly addressed.
The Master then considered whether the appellant had established that a person in her position would not have found out earlier than 1998 that her MRI results did not support a diagnosis of a tumour and that she had never had a pituitary tumour. He considered the question on the basis that it would be reasonable to infer that if she had found out earlier than February 1998 that she did not have a pituitary tumour she would have found out earlier than November 1998 that she had never had a tumour. The Master then turned to the question whether she had established that it was not to be expected that a person in her position ought to have found out prior to February 1998 that she had no tumour.
The Master said that he had no reason to think that a person, on being told that she had a pituitary tumour, would not be curious about it, and that he had no reason to think that enquiry about the detail would not be the normal expectation.
The observation was made by the Master that there was no evidence of the appellant making any enquiry as to matters of detail. At par122 of his reasons he set out a long passage from her cross-examination that commenced with questions about the period during which she saw the respondent in May 1994 and had the MRI scan of August 1994 but failed to arrange a consultation with the respondent in September 1994 as she had been requested.
There is no need to set out the passage in these reasons. It included her evidence that Parlodel was making her very ill but she made no further enquiry of the respondent about whether she still needed to be taking it. She said that she assumed the respondent would tell her if she need not do so. The obvious comment about that is that it was unlikely that the respondent would do so if the appellant failed to respond to her direction to see her after the August MRI scan. She conceded that she did not comply with that direction. She agreed that she did not know in 1994 whether the tumour was cancerous. She said that she did not know if she had ever thought about whether it could have been cancerous. She agreed that she thought that the purpose of the MRI scan in August 1994 was to see whether the tumour was getting bigger or smaller, or was still there, and yet she did not seek to find out whether it was getting bigger or smaller or whether the treatment was doing any good at all, even though it was causing her severe nausea. Claiming that she did not recall why she did not return to see the respondent, she advanced one possible explanation for not doing so, an explanation which I have found unconvincing.
In the same passage, the appellant said that she regarded the MRI scans as required by her doctor to monitor her condition and considered that the respondent would telephone her and advise if her condition had worsened or improved. She gave no reason for having such an expectation.
The Master found that the appellant had ample opportunity to seek further opinions about her condition from shortly after when she first consulted the respondent. She was a frequent visitor to the Northgate Medical Practice. There were many more visits than the ones to which I have referred and which the Master listed. She could have asked doctors at that practice about what the MRIs indicated concerning the tumour she believed she had. That applied to the MRIs in February and August 1994 and April 1996. She could have enquired as to the significance of the various MRIs failing to detect any abnormality. She could have asked for referral to another specialist for a second opinion if the general practitioners were unable to satisfactorily answer questions about how a diagnosis of a pituitary tumour could have been made and persisted with in the face of a series of MRI reports saying that there was no evidence of it.
Based on the matters to which I have referred, the Master concluded that he was not persuaded that it would not be the normal expectation that a person in the appellant's position, believing that she had a tumour, would not have made detailed enquiries about the tumour between 1994 and speaking with Dr Murray in early 1998.
The Master then turned to consider whether the evidence supported a finding that if the appellant had made earlier enquiries they would not have led to the earlier discovery that test results did not support a diagnosis of a pituitary tumour and that in fact there had never been a tumour. He reviewed evidence of Dr Murray, Dr Foley of the Northgate Medical Practice and Dr Booth of the same practice and concluded that there was nothing to suggest that an enquiry by the appellant following the August 1994 scan or the April 1996 scan, both of which were undertaken after she last saw Dr Hoffman in May 1994, would not have led to the same discovery which she made with the aid of Dr Murray in November 1998, namely, the discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour.
The evidence to which the Master referred included the following. Dr Murray said that an MRI was "the definitive thing for the diagnosis of prolactinoma". Dr Foley's evidence was that a negative MRI indicated that the person did not have an adenoma. He said that an MRI was the most sensitive test available at the time and capable of detecting things down to a millimetre or two. He would not have said to someone that it was possible to have an adenoma that was too small to be detected by an MRI, although he accepted that he would monitor the situation if treating somebody with a drug for a high prolactin level. In that circumstance he would be very inclined to reassure a person who had a negative MRI. Reference was also made by the Master to the evidence of Dr Booth that established that although he was of the view that the appellant had a "prolactinoma" he was unlikely to have said to her that she had a "pituitary tumour".
The conclusion was reached by the Master that the appellant did not make detailed enquiries about her perceived condition for many years. He was not persuaded that a person in her position would not be expected to make such enquiries at an early stage. He was not persuaded that such enquiries would not have led to the discovery by her that she did not have a tumour and from there to the discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour.
Finally, the Master turned to the question whether the appellant had characteristics such that a person with them would not be expected to have made earlier detailed enquiries about her condition. He considered evidence from a psychiatrist, Dr Paoletti, that the appellant suffered from a depressive disorder and an anxiety disorder. The Master noted there was no evidence from Dr Paoletti or any other medical practitioner, that her depressive symptoms affected her capacity either to be curious about her medical condition, to make enquiries of her medical advisers or to understand information which she might have been given as a result of enquiries.
The Master concluded that even if he accepted that the disposition of the appellant was to accept at face value advice given to her by professionals, not to question such advice and assume that her doctors would inform her if there was any reason to adopt a different course of action after test results were available to them, his conclusions were the same. He noted that the enquiries the appellant failed to make were not limited to enquiries challenging advice she had been given. She did not ask whether the tumour was cancerous or not. She did not ask whether it was getting bigger or smaller following MRIs. There is no evidence of her asking whether the alleged diagnosis impacted on her life expectancy. There was no evidence of her asking whether surgery was a treatment option. The Master considered that her failure to make enquiries which may have led to an earlier discovery that the MRI results did not support a diagnosis of a tumour and that she had never had a tumour, was neither explained nor justified by a disposition to accept professional advice at face value.
It has not been suggested by the appellant that the onus of proof was not hers. However, the Master asked himself the question what would he have decided if the onus had been on the respondent, and concluded nevertheless that the appellant had constructive knowledge of the alleged misdiagnosis, that is to say, constructive knowledge that her MRIs did not support a diagnosis of a tumour, and that she had never had a tumour, well prior to three years before the writ issued. In his view, the normal expectation of a person who was told that she had a pituitary tumour would be that she would have an ongoing curiosity about her condition and would make enquiries accordingly. Enquiries about the various MRIs would have resulted in a discovery that there was no tumour, and discovery that there was no tumour would have resulted in discovery that the MRIs had never supported a diagnosis of a tumour and that there never had been one. It was what was discovered by Dr Murray in 1998 after he reviewed all the MRI results. There was nothing to suggest that the same enquiries, if made earlier, would not have led to the acquisition of the same information.
The reasons of the judge for dismissing the first appeal
On the first appeal, the learned judge considered the submission of the appellant's counsel that the appellant had no reason to challenge the diagnosis of a pituitary tumour, or to seek a second opinion, because of her view, which her counsel submitted was a reasonably held one, that doctors would have told her if anything was different. Counsel submitted that her disposition to accept professional advice without query, explained her failure to enquire. As I mentioned earlier, the learned judge accepted that personal characteristics of the appellant, including an inclination not to make enquiries, were relevant.
After noting that the Master had determined that a consideration of such a characteristic would not have caused him to come to a different conclusion, the learned judge rejected the submission in the following way:
"The difficulty in the appellant's case is that, apart from the disposition to accept advice at face value, there was no evidence the appellant had any sort of physical, mental, developmental or emotional impairment or other reason which would have precluded her from asking the type of routine questions identified by the Master. She would not thereby have been challenging a diagnosis, but simply obtaining advice about a significant medical condition. She attended for a number of MRIs. Her evidence was they were unpleasant experiences and required her to take a day from her life. Yet never did she apparently show the faintest curiosity about the results of those tests, or indeed, it appears, the tumour itself. It is, with respect, inconceivable that she, as a person diagnosed with a tumour, would not have asked those basic questions, if not in the very early days of the alleged diagnosis, then at least after the continuing MRIs. Had the appellant made those enquiries, as the Master found, she would have been alerted to the fact the MRIs showed no tumour at all. It is apparent from the Master's conclusions, at par136, that that was the view he formed.
Counsel for the appellant submitted that, had the Master had regard to certain evidence of Dr Booth, he would not have drawn the conclusion that the appellant would have become aware she had never had a tumour by being told her MRI's were normal. This was because she was given repeat scripts of the medication she had originally been given to deal with the symptoms of the tumour and would have no reason to consider the tumour might not exist. With respect a review of that evidence does not detract from the Master's conclusion. Had the appellant asked Dr Booth whether the medication was doing anything in the sense of reducing or even removing the tumour, a not unreasonable question given the way in which she said the medication was adversely affecting her, the only response from Dr Booth would have to have been, what tumour."
The learned judge concluded that the ultimate determination of the Master that the appellant had not discharged her onus was a correct one, and dismissed the appeal.
The grounds of appeal
The grounds are:
"1The learned Judge erred in law and in fact when she concluded that the date of discoverability in section 38A of the Limitation Act 1974 that personal injury had occurred and was attributable to the conduct of the respondent was earlier than 23 November 1998.
1AThat the learned Judge erred in law and in fact in determining that it was inconceivable that the appellant, having been diagnosed with a pituitary tumour, would not have asked the basic questions identified by the Master at [2007] TASSC 31 at [134].
1BThat the learned judge erred in not finding that the Master had erred in concluding that the appellant had not discharged her onus of proof that the date of discoverability that her personal injury was attributable to the defendant was not earlier than 23 November 1998.
2The learned Judge erred in law and in fact in determining that had the appellant made enquiries of her treating medical practitioners she would have been alerted to the fact that medical imaging tests showed no tumour and therefore would have reasonably discovered that the respondent had mis‑diagnosed her condition earlier that she actually did.
3The learned Judge erred in law and in fact in determining that if the appellant had enquired of her treating general practitioner Dr Booth about the likely effect of medication he was prescribing for her on the tumour which she alleges the respondent diagnosed that Dr Booth would have responded to the enquiry only with 'what tumour'."
I will deal first with the specific error of the learned judge to which ground 1A refers. Her Honour found that it was inconceivable that in the very early days of the alleged diagnosis of a pituitary tumour, or after the MRIs in August 1994 and April 1996, a person diagnosed with a tumour would not have asked "those basic questions" about the result of her tests and the tumour itself. In the context of having just referred to a passage in the Master's reasons, it is clear that the learned judge was referring to questions such as whether the tumour was cancerous, whether it was getting bigger or smaller following the MRIs, whether the alleged diagnosis affected her life expectancy and whether surgery was a treatment option.
The Master was of the view that the normal expectation for a person told that she had a pituitary tumour would be that she would have ongoing curiosity about her condition and would make such enquiries accordingly. The learned judge went further and said that it was inconceivable that the appellant did not make those enquiries. In the light of the Master's finding that the appellant did not make those enquiries, I presume that the use of the word "inconceivable" by the learned judge was intended to signify something that was extraordinary and in particular, that the failure of the appellant to make those enquiries was a surprising one and that most people would not have failed to do so if placed in similar circumstances. The statement was made as a step in the reasoning of the learned judge that led to a conclusion that the Master's ultimate finding that the appellant's date of discoverability occurred earlier than 23 November 1998 was a correct one.
The ground of appeal cannot advance the appellant's cause to a successful conclusion. She can only achieve that by demonstrating that the Master erred. If she succeeds in that, one or more of her grounds of appeal that assert errors by the learned judge, will have succeeded.
Two basic issues arise for consideration. One concerns what enquiries or other steps ought to have been made or taken by the appellant but which she failed to make or take. The other concerns whether, if she had made those enquiries or taken those steps, she would have found out earlier than November 1998 that she had not suffered from a tumour. However, notwithstanding that I have expressed those issues in that way, it should be observed that she bore the onus of proving that she ought not to have discovered prior to November 1998 that she had not suffered from a tumour.
In the course of the hearing, the appellant made much of arguments that she reasonably believed that she had a tumour, because that is what the respondent told her originally, and that she reasonably relied on her treating professionals to be kept informed of progress with her condition, its diagnosis and treatment. In the light of the Master's unchallenged conclusion that he should assume that the respondent told the appellant that she had a tumour, the first of those propositions is not open to question.
There is no doubt that in a general sense, it is the duty of medical practitioner to keep a patient informed as to progress in the making of diagnoses and the outcome of treatment. But the duty cannot be regarded as an absolute one. It will more readily be found to exist if the practitioner comes into possession of information that in the patient's interest should be passed on as a matter of urgency. For example, if a report to a practitioner of an MRI scan reveals the existence of a tumour which might well be an invasive cancer and which might require urgent treatment, the duty of the practitioner will be to take all reasonable steps to communicate the results of the report, and the understandable concerns arising from it, to the patient, and urge acceptance of the need for such treatment.
If, on the other hand, tests prove negative and there is little or no need for concern about the future, and the patient was told to undergo the tests and then arrange to see the practitioner, it is more open to argument that nothing more need be done by the practitioner if the patient chooses not to accept the advice to return to the practitioner after the tests have been carried out. It might well be reasonable for the practitioner to leave it to the patient whether she wants further advice or treatment. Of course, each case will depend on its own circumstances.
Regardless of what the practitioner's duty may be, the question for determination is whether the appellant ought to have found out earlier than she did that she was not suffering from a tumour. I have no hesitation in agreeing with both the Master and the learned judge that she ought to have done so. For me, it is a clear case.
It was in the appellant's interests that she act on the advice of her medical practitioner and return to see her once the pathology test and MRI scans had been completed. She ought to have done so. It would be the normal expectation of a patient in the position of the appellant to want to know about the result of the test and scans and whether her treatment, which was causing her to suffer, need be continued or whether some other option for treatment might be available.
There is no evidence that the respondent said or did anything that ought to have persuaded the appellant that there would be no change in her condition, that it was unlikely that there would be any change, that the Parlodel was or was not improving her condition or that there was nothing else that might be done medically or surgically. The breakdown in communications between them resulted from the failure of the appellant to return to see the respondent in accordance with the advice she had been given. When, on 24 November 1994, she telephoned the respondent to tell her she was pregnant and was advised to see the respondent within the next fortnight, that should have served to emphasise to her that if she wanted medical advice and treatment from the respondent to continue, she had to arrange to see her. Her subsequent accidental meeting with the respondent in hospital in October 1995 and the conversation they then had, should not have persuaded her otherwise.
There is no evidence that there was some level of incapacity on the appellant's part to accept the respondent's advice to see her or to make enquiries about her condition, its investigation and treatment.
Dr Murray, an endocrinologist, was able to determine in Melbourne in 1998, from the scan and tests he arranged and from the earlier results of the scans and tests in this State, that the appellant had not suffered from a pituitary tumour. There is no reason to doubt that if the appellant had continued to consult the respondent, who was also an endocrinologist, she would have learned that from her much earlier than 1998. If she had consulted her in September 1994, it is a certainty that the respondent would have told her that the investigations had proved encouraging, for the MRI scans performed on two different occasions revealed no evidence of a tumour and the last pathology test revealed that her prolactin level had dropped to within the normal range. Although monitoring of the situation may have continued for a time, and the respondent may have continued to prescribe Parlodel for a time, depending on what symptoms and signs existed, it is likely that before much time had passed the respondent would have informed her that she did not appear to have a pituitary tumour at all. I reject the appellant's submission that it is likely that the respondent would have persisted with her misdiagnosis even if the appellant had continued to consult her.
The Master did not err when he concluded that the appellant had failed to show that she ought not to have known prior to November 1998 that there was no tumour.
I would dismiss the appeal.
File No 179/2008
KYLIE MARIE KAYE v LINDA HOFFMAN
REASONS FOR JUDGMENT FULL COURT
EVANS J
29 January 2009
I agree with the reasons for judgment prepared by Crawford CJ and would also dismiss the appeal.
File No 179/2008
KYLIE MARIE KAYE v LINDA HOFFMAN
REASONS FOR JUDGMENT FULL COURT
PORTER J
29 January 2009
I agree that for the reasons given by Crawford CJ, the appeal should be dismissed.
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