Lawson v Minister for Health - [2005] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LAWSON -v- MINISTER FOR HEALTH [2005] WADC 105

CORAM: COMMISSIONER KEEN

HEARD: 26-29 APRIL 2005

DELIVERED : 9 JUNE 2005

FILE NO/S: CIV 126 of 2003

BETWEEN: MATHEW CHRISTOPHER LAWSON
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Negligence - Medical negligence - Failure to diagnose - Whether should have used CT scan for diagnostic purposes - Turns on own facts

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Ilberys
Defendant: Mullins Handcock

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

Hunter v Hanley [1955] SLT 213
Rogers v Whitaker (1992) 175 CLR 479
Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871
The Board of Management of Royal Perth Hospital and Another v Frost, unreported; FCt SCt of Western Australia; Library No 970069; 26 February 1997
Whitehouse v Jordon [1981] 1 WLR 246
Wilsher v Essex Area Health Authority [1987] 2 WLR 425

Case(s) also cited:

Rosenberg v Percival (2001) 205 CLR 43
Naxakis v Western General Hospital (1999) 197 CLR 269
Albrigton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Northern Sandblasting v Harris (1997) 188 CLR 313
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Chappel v Hart (1998) 195 CLR 232
March v E & MH Stramare (1991) 171 CLR 506

COMMISSIONER KEEN:

Introduction

This is a claim for damages arising out of treatment undergone by the plaintiff at the Rockingham/Kwinana Hospital on 12 December 1998.
The plaintiff was born on 5 January 1984 and as at the date of his treatment at the hospital was a student.

Background

On 12 December 1998 at approximately 2.40 pm the plaintiff attended the Emergency Department of the hospital with his mother, Mrs Larraine Belaire.
The plaintiff presented with pain behind his right eye which had commenced the previous night. He also had unilateral right‑sided throbbing headache.
At the hospital the plaintiff was initially seen by a triage nurse and then, in the Emergency Department, by Dr Schenk. Dr Schenk took a detailed history from the plaintiff and carried out and detailed a thorough examination of him. Dr Schenk diagnosed that the plaintiff was suffering from a migraine and placed him on medication for pain relief and nausea.
Part of the history taken was that the plaintiff had suffered sinusitis.
At approximately 4.50 pm the plaintiff was discharged from hospital with a prescription for Panadeine Forte.
On 13 December 1998 the plaintiff returned to the hospital where he gave a history that the pain had continued at home and that there was swelling in the right eye. He had been vomiting and the eye was painful. Examination revealed a painful swollen right eyelid, pain in the eye with movement and a red throat. A diagnosis of orbital cellulitis was made and the plaintiff was referred to Fremantle Hospital for further treatment.
The plaintiff was admitted to Fremantle Hospital on 13 December 1998 where he underwent blood tests and a CT scan. That CT scan revealed right‑sided intra‑orbital extraconal abscess beneath the right orbital roof. It also detected further sinus disease present in the maxillary antra bilaterally. Changes of right peri‑orbital cellulitis was also seen.
The plaintiff was admitted to surgery where he underwent right orbital abscess drainage under general anaesthetic and remained in hospital until 21 December 1998.
As a result of the infection to his right orbit he has subsequently gone on to suffer intermittent double vision and headaches.

The pleadings

The plaintiff's claim is that the defendant owed the plaintiff a duty of care and that is not disputed by the defendant. It is alleged that the plaintiff's residual disabilities are caused by a breach of that duty of care which was particularised as follows:
(a)failed to act upon the History during the First Emergency Department Attendance.
(b)failed to perform the investigations during the First Emergency Department Attendance, or to arrange for the investigations to be performed at another hospital, or to recommend that the investigations be performed. That allegation was the subject of further and better particulars whereby the plaintiff was requested to specify the investigations the plaintiff claims should have been carried out and in answer stated – "commencement of intravenous antibiotics, the taking of blood for the testing of pathogens that may have been causing a right orbital infection, arranging for the plaintiff to undergo CT scan and admission to Rockingham/Kwinana Hospital or transfer to Fremantle Hospital for further tests of the nature referred to in paragraph 11 of the statement of claim".
(c)diagnosed that the plaintiff was having a migraine.
(d)failed to diagnose that the plaintiff was having an inflammation such as orbital cellulitis or a tumour behind the eye, either of which would have warranted immediate investigation including a CT scan of the skull and orbital sinuses, as well as a full blood test to see if there was any increase in white cell count that could be associated with an inflammatory condition, and the commencement of a broad spectrum antibiotic.
The defence set out in detail the history given by the plaintiff and the examination carried out at the hospital and averred that as a result of the clinical and ophthalmology examination the doctor who examined the plaintiff made a provisional diagnosis of migraine.
The defence goes on to plead the treatment that was then given and that at 1635 hours the plaintiff's temperature was 36.4 degrees, pulse 68, respiration rate 20 and blood pressure 1010/60 (sic 110/60).
The defence goes on to note that at that time the plaintiff was sleepy and it was recorded in the medical records that his headache had gone.
The defence further pleads that at 1649 hours it was noted that his pain had settled and he was discharged. It is pleaded that prior to leaving the hospital he was instructed to return if his symptoms returned.
Whilst admitting that the plaintiff was not investigated using a CT scan it was stated in the defence that based on the plaintiff's signs and symptoms and based on the results of the clinical examinations a CT scan was not indicated.
The allegations of negligence set out in par 14 of the statement of claim were denied.

The issues

In the ultimate analysis, on liability, this case came down to whether or not a CT scan should have been carried out on 12 December 1998 as part of the practice of safe emergency medical care so as to rule out a differential diagnosis of a life threatening or disabling illness in the short term.

The evidence

Evidence by consent

In this matter I received as Exhibit 1 a book of documents which comprised the Rockingham/Kwinana Health Services notes relating to the plaintiff's admission on 12 and 13 December 1998, a book of the Fremantle Hospital notes following the plaintiff's admission to that hospital on 13 December 1998 which included CT scans taken on 13 December 1998 and 30 December 1998, further notes from Fremantle Emergency Department of subsequent attendance on 23 May 1999, various medical reports including a report from Dr Stephen Wiffen, consultant ophthalmologist, dated 14 June 1999 and from Dr David de la Hunty dated 22 February 2001. Exhibit 1 also contained a set of pay rates for the Australian Defence Forces.

The plaintiff

The plaintiff was aged 14 at the date of the happening of these events and aged 21 at the hearing of this matter. Despite his age he gave his evidence‑in‑chief in a confident and self-assured way.
He recounted that on the evening of 11 December 1998 whilst watching television he experienced a sharp pain behind his right eye. He took Panadol and went to bed. The next day when he woke the pain had intensified. He took some Panamax and went to work. During the day he suffered extreme pain and took further Panadol but it made no difference. After finishing his shift he went home and on the way home burst into tears.
On arriving home he was greeted by his mother who, after making arrangements for her younger children to be cared for, took him to the Rockingham/Kwinana Hospital.
According to the plaintiff, he was directed straight through to the Emergency Department. He there saw a female doctor who examined him and asked him a number of questions. According to the plaintiff, the doctor said that she could see something there (in the eye). He also said that his mother asked for a scan if the doctor could see something. The doctor responded that she did not think that that was necessary.
The plaintiff said that he was placed in a room on a "gurney" with the lights off and put on a drip. He described the pain in or around the eye as excruciating. He said that he had a runny nose and it felt like hay fever. He also had water running out of his right eye.
The effect of lying down in the room with the lights off and the drip were to make him sleepy but according to him it did not change the pain.
He said that further discussions took place with the doctor who had a book open in her hand and said that the plaintiff was suffering a migraine or cluster headache.
The plaintiff said that the pain did not leave at all.
On questioning about the time when he was told that he could leave he said that they were just about to leave the emergency room and he was standing next to his mother. A doctor was explaining that it was a migraine and filled out a script and they were told to go home and come back if the pain was still bad. He said that his mother asked if it was still bad and he said "It's still painful but I just want to go home. I feel tired. I just want to sleep". He said that his mother asked the doctor again to do a scan. When asked which doctor it was that they were talking to he said "the one that initially – the female doctor that examined me".
The plaintiff returned home and took some Panadeine Forte, went to his room and eventually went to sleep. The next day when he awoke his eye had swollen to the point where it was not able to open. Again his mother made arrangements for the younger children to be cared for and took him to the Rockingham Hospital. He was given some treatment there and then taken to Fremantle Hospital where he underwent a CT scan and blood tests.
After his release from Fremantle Hospital the plaintiff said that he suffered a lot of double vision sometimes slightly fuzzy like a blurriness and other times it feels like there are two images side by side. He also said that he got a lot of headaches at least two a week. These occur normally at the end of the day after he has been working and around the time that he gets double vision. The headaches or double vision could be brought on by watching television or if he is on the computer or reading, at any time that he has to concentrate. When asked how he dealt with it he said that "sometimes I rub my eyes and close them but if it gets really bad and doesn't go away I go for a nap or something like that".
Since his discharge from Fremantle Hospital he has returned to Fremantle Hospital in relation to his headaches.
When asked about treatment for his complaints he gave evidence that a couple of doctors had suggested using glasses. His view on that was that he did not understand how glasses with a certain prescription could fix the problem or the changes.
In addition to these residual disabilities he also suffers a scar from where the abscess was drained which is about 1.5 cm in length adjacent to the bridge of the nose on the right side and appears slightly depressed or sunken.
The plaintiff said that he feels uncomfortable being around people because of his physical deformities.
As a result of this incident the plaintiff, who had a casual job working in a supermarket, lost time from his work and did not return to work in the supermarket until early January 1999. Ultimately his job at the supermarket came to an end for the reason, according to him, that he was not given enough hours and was not earning enough and he wanted to concentrate on his TEE.
When asked about his schooling he said that in 1999 he was in Year 10 at Kolbe Catholic College. At the end of Year 9 (1998) he said that he was getting A's, a few B's and C's in his subjects. In year 10 he found difficulty with doing homework and reading because of the double vision and headache. He said that his grades in Year 10 were appalling for his standards and he had a lot of absences due to headaches and blurry vision.
He said that in Year 11 he went to Warnbro Community High School and that was difficult because there was more study involved for his TEE and he could not study to the extent that he was required. He said that he did dismally in Year 11 and repeated it and got marginally better results. He entered Year 12 in 2002 but pulled out about halfway through.
The plaintiff's stepfather had been in the Navy for a number of years. The plaintiff said that his stepfather would recount stories of the Navy and the friendships that he had made. The plaintiff said his plans were to complete Year 12 and then join the Navy. He said that he wanted to get a trade in the Navy so that he could use it on the outside and that he would probably have to stay in for at least four years. He thought it would be a good career.
As it transpired he did not complete Year 12. He then undertook a number of jobs including labouring and was at the time of the hearing employed by Squire Cold Storage Pty Ltd where he earns an income of approximately $770 per week.
In relation to his plans to join the Navy the plaintiff said that when he was in high school he sent for "a couple of packs" and received information in pamphlets. He made enquiries about joining the Army Reserves and got as far as the induction. He did not join the Army Reserves. He said that with his eye problem he could not see himself getting to the point where he could join the Defence Forces.
The plaintiff was cross‑examined as to his schooling. School reports were put to him for semesters 1 and 2 in Grade 9 (1998) and semester 1 for Grade 10 in 1999 from Kolbe Catholic College and these became Exhibits 3A, 3B and 3C. It was apparent that, contrary to his earlier evidence of having grades of A's, B's and C's, his grades were much lower with comments such as:
"Mathew is not working well. He does not appear committed to improving his ability to communicate. Procrastination in completing set work has hindered his progress. He must learn to complete work by due dates".
The general comments to his reports in Grade 9 contain:
"Mathew has received a fairly mixed report with a number of areas that he could improve upon. He will benefit from a more organised approach to homework tasks. Mathew is a delightful young man who knows that he could adapt a more determined approach".
In both the first and second semesters it was noted that he had 12 days absent.
The plaintiff was also cross‑examined about his disability of double vision and accepted that he had been advised by Dr de la Hunty that wearing glasses might assist. When questioned as to why he has not taken that course he said that he felt that he should not have to wear glasses, it was a difficult time at school. When pressed that he could have worn them at home when he was doing studying and that nobody would have known the difference his answer was that he did not know if they would work or not. He accepted that if he had tried them they might have stopped his headaches and he might have been able to do his homework. He merely said that he did not want to wear glasses and confirmed that that was still the present position.
The plaintiff was taken, by counsel for the defendant, very carefully through the admission notes of the Emergency Department at the Rockingham/Kwinana Hospital. He was asked to confirm that the statements contained therein were correct. He confirmed the history that he had previously been well, that he had onset of pain behind the right eye the previous night about 8.30 pm whilst watching TV, he had unilateral right throbbing headache, there was no visual phenomena in that he was not having blurred vision, that he had been able to sleep the previous night but described waking every half hour, that there was no history of trauma and had not been in an accident, that the headache was still there that morning, there was a worsening of pain that day and two Panadol and two analgesics had been taken with minimal effect to which he responded with no effect, that he went to work, felt nauseous and he was feeling sick, that he had a runny nose which was normal for him, that he had tearing to the right eye, that he normally had lacrimation but slightly more than usual, that he had hay fever.
He accepted that most of what had been written down was accurate. When questioned as to what was not accurate he said that he had no relief from Panadol. He confirmed that there was no previous history of headaches and no eye problem. He confirmed a past medical history of sinusitis and adenoids and tonsils.
It was also put to him that the Glasgow Coma Scale demonstrated that he was alert and did not appear to have any head injury or loss of consciousness and he agreed that that was the position. He also agreed that he had been checked for neck stiffness and rash. He also agreed that he was checked for his visual activity in both eyes and was tested by the doctor moving a finger in an "H" shape in front of his eyes. He accepted that his eyes were checked and the doctor used a light to check the eyes and also a slit lamp. His eyes were stained and checked.
The plaintiff also confirmed that the doctor checked under his eyelids.
When asked whether there was swelling of the eyes he said he did not believe so and he agreed that his temperature and blood pressure had been taken before he was released.
As to the hospital notes which said "pain settled, home, Panadeine Forte, return if returns" he responded that the pain never left. He agreed that he was examined before he was allowed to leave and that was by a male doctor, contrary to his evidence‑in‑chief when he said it was the same doctor who initially saw him, a female doctor.
The plaintiff was also cross‑examined in relation to recommendations from Dr Agnello to do exercises to strengthen his eye and he confirmed that he had done nothing about that. He confirmed that he was having no treatment for his eyes and headaches other than the treatment that he described as giving himself of rubbing his eyes or closing them or resting.
When questioned about the examination by following an "H" shape described by the doctor's finger it was put to the plaintiff that he had no painful eye movement. He said "No, I was just in pain but not on eye movements". However, on the following day 13 December 1998 he did have painful eye movements. He also agreed the eyelid was swollen whereas it had not been on the previous day. He also agreed that he had a sore throat but had no pain in his sinuses.
On further cross‑examination as to how he felt at the time of his discharge on 12 December 1998 he said that his mother asked him if he was okay and he said "No, the pain hasn't gone. I'm just sleepy. It still feels like something is pushing my eye out".
In re‑examination as to his time off at school he said that he had thought about it and thought that he used to help his mum quite a bit when she was by herself with the two younger children.

Mrs Larraine Belaire

Mrs Belaire gave evidence which was in many respects corroborative of the evidence of the plaintiff in relation to the events leading up to his admission to hospital. She also corroborated his evidence that he took time off school to assist her to look after the children at a time when she was attending certain court appearances to do with the separation from her then husband. She also corroborated his evidence as to his interest in joining the Navy stating that he said that when he grew up he would like to join the Navy.

Mrs Belaire also corroborated the plaintiff in some respects as to what occurred at the hospital on 12 December 1998. However, despite the plaintiff's evidence of the detailed history taken and the examination carried out Mrs Belaire was far less certain. She could only remember a small part of what transpired.
Despite being with the plaintiff the whole time she could only recall the doctor checking his eyes on the eye machine. She did not think that he was checked for neck stiffness or a rash, she did not recall him being checked for eye movement or with a light nor that his eyes had been stained for checking purposes. She did not recall the doctor checking under his eyelids nor later, prior to discharge, his temperature, pulse and blood pressure being taken.
She did not recall the plaintiff being examined by a male doctor before he was released from the hospital nor any advice being given that if the pain returned they should return to the hospital. She said that she recalled the nurse saying that he could go if he was feeling better and that she replied that he was not feeling better. The following exchange took place in cross-examination:
"So they said he could go if he was feeling better?---I don't recall the nurse saying that because Mathew was not feeling any better. I told he still had pain.
The nurse didn't demand that you go home, did she?---She said he could go.
Yes?---Them being the medical experts, we went."
Further on the questioning continued:
"If the pain hadn't stopped why didn't you complain and say, 'he's still very sick'?---I did. I told the nurse that he was in pain still.
Are you suggesting the nurse basically told you to get out of the hospital?---She did not tell me to get out of the hospital. She said we could go.
Didn't you complain that he wasn't better?---I told the nurse that he wasn't feeling much better.
What did she say to that?---She said she was going to tell the doctor.
Did you then wait there till a doctor - - - ?---We waited for a little while and she said he could go.
How many times did she say he could go?---She told us he could go once that I can recall.
You said that and then you said you complained that he wasn't better and that you thought she went off to see a doctor. Did you not then wait until the doctor came?---Yes, and no doctor came that I can recall.
So why didn't you stay?---We left.
Why didn't you stay?---Because she told us we could go.
Yes, but you understood, you say, that she was going off to get a doctor to come and have a look at him because of his pain?---Yes, we waited and no doctor came, so we went. Mathew said to me, 'come on, mum, they said we could go,' and we went.
The fact is you went because his pain had gone?---No, his pain had not gone."
Further in cross‑examination Mrs Belaire was asked whether she checked on the plaintiff the next morning, she said:
"He woke me up a few times during the night through moving around and I sang out, 'are you okay?' and he said, 'the pain's still there,' and I said to him that if it got worse, really bad where he couldn't bear it, we must go back to the hospital and he was to wake me and we were going to take him back."
Mrs Belaire was re‑examined as to this and the following exchange took place:
"When you say Mathew woke you up several times, what was it that woke you up?---Him complaining and sort of moaning and sort of like – I said to him, 'are you okay?' and he said 'no, the pain's still there'. And I said to him 'are you alright?' and he said, 'I suppose I have to be, don't I?'.
When you say you called out to him, why did you have to call out to him?---Because I was in my bedroom. I was in bed when he woke me up.
Where was he?---I sang out really quick.
Where was he?---He was in his room. In his room.
Yes. Thank you?---Which is in the other side of the house."

The plaintiff's medical evidence

The plaintiff called expert evidence from Drs Theo Keldoulis and John Raftos.

Dr Keldoulis

Dr Keldoulis was until 18 months ago practising as an ophthalmologist from Macquarie Street, Sydney. His curriculum vitae demonstrates a long career in medicine when he held a number of positions in ophthalmic organisations. There did not appear to be any challenge to his undoubted expertise in his field.
Dr Keldoulis produced two reports dated 29 July 2002 and 19 April 2005 (Exhibits 6A and 6B). For the purposes of preparing those reports he had access to a number of the documents comprised in Exhibit 1 and in addition a report from a Dr Ross Agnello, ophthalmologist, dated 31 March 2005.
In his report of 29 July 2002 Dr Keldoulis responded to a number of questions that had been put to him. He noted that the history in the hospital showed that there had been pain in the eye since the previous night and no relief from analgesic and said that the significance of that was that one presumed that there is an inflammational pressure in the eye or if that were clear there would be something in the orbit of the eye either an inflammation or pressure from a tumour type growth which will be giving that sort of problem. As to the inflammation and the possible causes of it on the history given he said that one would be looking at iritis or uveitis but these had been eliminated because of the examination and one would then have to start worrying about what was behind the eye which one can only tell by doing an x‑ray or CT scan.
He went on to say that in the absence of inflammation around the eyelids or the conjunctivae and nothing to give the impression that there was any real inflammation in the eye that may spread back into the orbit one would have to be thinking about the sinuses in particular if one was thinking of inflammation.
With regard to the sinuses he said that if it does happen to be a bacterial inflammation and an infected one the bacteria can multiply causing an infected sinus and if that builds up with any pressure it can pass through the thin wall of the sinuses into the orbital area. He said that the potential consequences for that is a localised abscess but there is usually a cellulitis and inflammation of all the soft tissue and if that is not controlled with antibiotics it can spread back along the optic nerve and intercavernous sinus and cause meningitis with possible death or if it just is confined to the orbit it can interfere with the optic nerve.
Dr Keldoulis was asked of the significance of a past history of sinusitis and he responded that given a complaint of pain at the back of the eye and in the eye to the extent that they have examined him for inflammation in the eye but not having found anything there, before going off and diagnosing a nerve pain like migraine or something like that, you have got to examine behind the eye and the only way you can do that is with scanning.
Dr Keldoulis went on to say that with the history of sinusitis he would be thinking more that the cause of the problem was infection causing an inflammatory response and the sooner the plaintiff was started on broad spectrum antibiotics the less likely you are to finish up with permanent damage.
In his report he said that if there had been any cause to believe there was a differential diagnosis (from migraine) involving orbital cellulitis or a space occupying lesion behind the eye, an immediate referral to an ophthalmologist privately would have been the proper course to follow. When questioned as to whether there ought to have been a diagnosis of some infective or inflammatory process involving the eye he said that his feeling was that the hospital had come to the diagnosis of migraine without eliminating the alternative possibilities and that migraine should have been at the bottom of the list not at the top of the list.
As to why there might have been a differential diagnosis to migraine he noted that the plaintiff was a 14 year old patient who had not been suffering headaches previously and he had pain behind the right eye which was not ordinary pain, it was severe without full relief from analgesic tablets. He said that the pain behind the eye is associated with a sinus attack and the plaintiff had a runny nose, there was some inflammation in the eye and there was some congestion and a bit of scleral injection but it is the combination of the sinusitis attack with pain specifically behind the eye, not relieved by analgesics, which to him was a very severe complaint and which he would not have considered a migraine as the primary cause and dismissed any further investigation.
Dr Keldoulis was of the opinion that a CT scan would have shown the sinuses to the infected and that even if the orbital abscess had not formed at that time there would have been evidence of thickening around the orbital tissue showing some cellulitis present. He further noted that the second CT scan taken on 30 December 1998 showed there were changes in the soft tissue around the eye and he had no reason to doubt that there would not have been changes picked up on a CT scan if done on 12 December.
Dr Keldoulis said that had those investigations been conducted on 12 December 1998 and a diagnosis of orbital infection made and intravenous antibiotics commenced it was quite possible that the orbital abscess might not have formed and surgery may not have been required at all. It was also his opinion that it is quite possible that the plaintiff would not have suffered any damage to the eye muscles which had led to the interference with muscle action that he now suffers.
It was put to Dr Keldoulis in cross‑examination that some of the symptoms that had been suggested to him were not in fact the symptoms with which the plaintiff presented and that some of those symptoms were classic symptoms of orbital cellulitis. Dr Keldoulis agreed. He also agreed that orbital cellulitis classically presents with a patient systematically unwell, febrile red‑eyed, with swollen red eyelid, retro‑orbital pain and possibly with associated features of extra ocular muscle involvement, diplopia, pain on movement and a proptosed or extruded prominent eyeball. Dr Keldoulis agreed with all of those symptoms.
The examination carried out was put to Dr Keldoulis and it was put to him that on that examination there was nothing to indicate orbital cellulitis. Dr Keldoulis said that you would not diagnose it from that and there were no symptoms of orbital cellulitis in the presentation.
Also under cross‑examination Dr Keldoulis agreed that retro‑orbital pain can be associated with migraine or a cluster headache but thought that that was unusual. He also agreed that migraine could include runny nose and tearing of the eyes. However, he did go on to note that the diagnosis of migraine was made without investigation of the plaintiff further but agreed that everything was done except to look at the back of the eye where the problem was. When it was put to him that there was no sign at all of an infection he agreed that that was the case and that migraine was a diagnosis which was open.
Despite the other symptoms on 13 December 1998, Dr Keldoulis agreed that there was nothing to indicate infected sinuses on that occasion as they were not tender. There were no classic signs of infection including absence of a purulent discharge. Nonetheless Dr Keldoulis maintained his view that here was a patient who was painful behind the right eye and the easy way out was to diagnose migraine whereas really one should find out why the person is presented with such severe pain behind the eye and whether there is anything behind that eye that is causing the pressure to cause the pain and that a CT scan was indicated.
In re‑examination Dr Keldoulis thought that for a migraine it was rare to get pain actually behind the eye.
On the evidence that day and the following day, the pressure behind the eye meant, according to Dr Keldoulis, that the inflammation had passed through the sinus wall around the orbital tissues causing a cellulitis and that he thought that it had already started on that day and was sure that a CT scan would have shown a haziness there even if the abscess was not formed. His proposition was that if the CT scan had been carried out the doctors would have come up with the answer.

Dr John Raftos

Dr Raftos is a medical practitioner practising as an accident and emergency physician at St Vincent's Hospital Sydney. His curriculum vitae demonstrates that he has been involved in emergency medicine since 1984 and is currently the senior specialist in emergency medicine at St Vincent's Hospital. He is undoubtedly well qualified in his field.
Dr Raftos produced a report dated 9 June 2004. After setting out the history of this matter as he understood it he embarked, in his report, upon a discussion and dealt with the significance of infections of the orbit. In the context of an emergency department physician he stated that the principal purpose of hospital emergency departments is to detect or exclude illnesses or injuries that can be life threatening or disabling in the short term.
In his report he noted that infections of the orbit may spread to the orbit from adjacent sinuses, eyelids and conjunctivae. In answer to questions by counsel he noted that the two predominant causes of intra orbital infections were sinus infections and tracking of the infection from the sinus to the adjacent orbit or from infections of the skin around the eye, conjunctivae infections that contract back into the orbit. Intraorbital infections arising from the sinuses were more common.
Dr Raftos dealt with the presentation of the plaintiff at the hospital and when asked what it was about his presentation that ought to have caused concern in the Emergency Department he answered:
"There are several things. Firstly, the complaint of headache in a 14 year old boy is – whilst 14 year old boys certainly get headaches, presentation to a hospital Emergency Department of a 14 year old boy with a headache is uncommon and should be viewed with significant concern for the potential that it may be caused by a life threatening or disabling illness. So the first point that I would make, I think, is that headache in a 14 year old boy should be raising warning signs. Then more specifically Matthew had presented with a clear history of pain associated with his right eye, pain behind his right eye or a pushing sensation behind his eye and variously described. He had increased tearing from that eye. … the triage nurse noted that the right eye was red. So this suggested that there was pathology associated with his orbital, with his eye, and that's another area where significant concerns must be raised because the potential for loss of vision or alteration with vision in conditions that affect the eye is very high and once again its an unusual presentation in a young man and it’s the sort of presentation that would be raising flags."
In his report he noted that the plaintiff's headache was probably his first serious headache and was certainly his worst headache. He said that that should have been investigated with cerebral CT scan for the headache alone. He said that migraine is a diagnosis of exclusion and should never be made before other more serious causes of headache have been effectively excluded. He went on to say that an ordinary skilled Emergency Department doctor in these circumstances would have performed a cerebral CT scan to exclude the possibility of potentially life threatening or disabling causes of headache.
In his oral evidence he indicated that treatment by way of analgesia is not a test of whether the diagnosis might be correct or not. I pause to note that that was the tenor of all of the witnesses on that point.
He further thought that a CT scan of the sinuses would have shown evidence of acute or chronic sinusitis and a CT scan of the orbit would on the balance of probabilities have shown evidence of a intraorbital infection.
His evidence was that at the hospital there were two courses open to the doctor; firstly to consult with an ophthalmologist or an ophthalmology registrar before doing anything else or secondly, to perform a CT scan of the orbits and the head. He gave evidence that in Sydney where he practises in the Emergency Department, investigation of a patient with a first or worst headache would always include a cerebral CT scan which will reduce the risk of missing significant conditions which may then become life threatening or disabling in the short term. In answer to a question as to what would be the position where a CT scanner was not available he said that it would make it very difficult to practice safe emergency medical care – to work in an emergency department without a CT scanner in 1997. A lot of the exclusion and diagnosis of serious illnesses in emergency medicine rely on CT scan more and more so and in the absence of a scanner the hospital ought to have protocols and directions to ensure that patients who require CT scans get them promptly.
In his report he was of the view that examination on 12 December 1998 would have revealed evidence of tenderness over the sinuses leading to a diagnosis of sinusitis and such an examination would be expected of a patient who presented with a past history of sinusitis, a running nose, increased lacrimation, and retro‑orbital headache. He thought that intraorbital infection should be part of the differential diagnosis of any patient who presents with retro‑orbital pain especially where the eye is red and painful and there is a past history of sinusitis.
Under cross‑examination Dr Raftos agreed that the examinations carried out at the hospital were all appropriate examinations.
Further, in his report he dealt with the symptoms of orbital infection which included inflammation of the eyelids or conjunctivae and agreed that the examination demonstrated that they were not there. Further, he agreed there was no sign of any fever or systemic toxicity and that migraine could cause tearing of the eye and unilateral headache and throbbing. When questioned about the plaintiff's temperature, pulse, respiration and blood pressure he agreed that those indicated that the plaintiff was seemingly well and that there was no toxicity.
When pressed, given the clinical signs that were evident on the day in question as to whether he agreed that what had happened was entirely reasonable he said:
"No. I think that what we have is a young man who presented with two symptoms that are a cause for major concern, a young man with a significant headache in whom the diagnosis of migraine was totally unreasonable and unsafe, and a young man with retro‑orbital pain which is always suggestive of potential for harm to the eye, but that wasn't adequately investigated or diagnosed. No diagnosis was made for the orbital pain."
Dr Raftos like other doctors giving evidence in this case agreed that cases of orbital cellulitis were rare. In his practice over 20 years in hospitals which see 30,000 to 40,000 patients a year he said that he would have seen four or five patients with retro‑orbital infection in that time.

The defence evidence

Dr Meta Christine Schenk

Dr Schenk was the doctor on duty at the Rockingham/Kwinana District Hospital when the plaintiff attended. At that time she was employed by Fremantle Hospital and was a first year resident.
Dr Schenk advised that she had very little recollection of the events surrounding this matter.
She was taken to the hospital notes and confirmed that the notes as to the history and examination were in her handwriting.
She said that at that time she was aware of the symptoms of orbital cellulitis although she had not seen a case of it.
On the day in question she did not consider it was appropriate to obtain a CT scan as given the history and examination there didn't seem to be any sinister cause for his presentation.
Given that Dr Schenk did not have a precise recall of the events of that day her evidence was broadly on the basis of her usual practice.

She agreed with counsel for the plaintiff that if a patient had a severe headache – pain behind the right eye – that it would be important before the patient was discharged from emergency that possible life threatening or disabling injury or illness was excluded. She went on to say that during her taking of the history and examination and in her discussions with the registrar she excluded serious causes of his presentation.

Dr Stephen Mark Grainger

Dr Grainger is a specialist in emergency medicine. In December 1998 he was still undergoing his emergency medicine training and was at the end of his second year of training, a course which takes five years. He was working at the Rockingham Kwinana Hospital at the time as an emergency registrar.
Like Dr Schenk he had no independent recollection of the events. However, he confirmed that the writing on page four of the notes in Exhibit 1 "FHA mother? migraine" were in his writing and meant family history mother? migraine. He said in evidence that migraine often has familial occurrences and children of parents with migraine are more likely to suffer migraines.
He also confirmed that the words on page 5 of that exhibit being "1649 pain settled HM Panadeine Forte Return if returns" were in his handwriting and followed by his signature.
On page 3 of the notes were the observations taken at 1635 of the patient's temperature, pulse, respiration and blood pressure and Dr Grainger said that they would tend to indicate a lack of systemic unwellness. He said he would have had those notes at the time he discharged the plaintiff.
Dr Grainger was asked what he would have done had the plaintiff or his mother complained of ongoing head pain. He said that they would have kept Matthew in, reviewed him and considered alternative diagnosis if the pain didn't respond to standard migraine treatment.
He said that there was no ophthalmic service available from Rockingham Hospital and patients who needed ophthalmological assessment would be referred to Fremantle Hospital. In those circumstances generally he would discuss the case with them and decide whether to see the patient that day in the Emergency Department at Fremantle or whether to send them to a clinic during a normal working day.
At the time he discharged the plaintiff he said that he would have looked at the notes. He noted that there was nothing in those notes to suggest that a CT scan should have been obtained because:
"There were no local eye signs elicited. The patient didn't have concerning features for other causes of headache, which we would arrange a CT scan for. Patients with things such as intracranial haemorrhages will obviously need a scan immediately. Nothing on this examination suggested that Matthew needed an urgent scan and I doubt very much whether we could have convinced a hospital with a CT scanner to accept this patient for a scan."
As a foundation for that Dr Grainger went on to say:
"On Matthew's presentation there was no signs present of a localised orbital pathology and there was nothing in his headache that was concerning enough that he needed something done immediately and we have to justify each patient who is sent to the Emergency Department and talk to the consultant on at the Emergency Department to accept the patient, talk to the on call CT radiographer and radiologist who will need to come in from home to do a CT. So we spend a lot of time arguing about patients and trying to arrange CT's for patients, even patients with clear signs who need a CT."
Under cross‑examination when asked if he would do it all over again Dr Grainger said:
"Looking at these notes if Matthew presented with this, then his management would be essentially along the same lines. It is unlikely still that Matthew would get a CT scan. We try to avoid CT scans for children for the simple reason that a percentage of them will develop fatal malignancies later on in life from the radiation dose from CT scans."
Dr Grainger accepted that there was a history of pressure behind the eyeball and when it was put to him that there was nothing to exclude the cause of the pressure behind the eyeball Dr Grainger responded:
"But what you must understand is that we can't investigate every patient for every possible illness. We are constrained by availability of scans, by radiation doses to young patients, cost, the busyness of emergency departments. Every patient can't have a whole body scan to exclude every illness. We try and limit down, narrow down, what we're going to do to exclude the serious illnesses."
He was questioned about the presentation of orbital cellulitis and responded that there was nothing which Matthew exhibited except the pain on his presentation. He had none of the classic findings of redness around the eye, inflammation around the eye, in the lid, in the upper and lower lid and a swollen inflamed eye.

Dr Ross Agnello

Dr Agnello is an ophthalmologist who amongst other things specialises in study of disorder of the eye muscles and ocular misalignment.
Dr Agnello produced two reports dated 31 March 2005 and 13 April 2005. Those reports relate to the condition of the plaintiff's eye and what could be done by way of treatment rather than engaging of a discussion as to the treatment that the plaintiff received at the hospital.
Dr Agnello noted a history of right sided frontal headaches, occasional severe pain behind the right eye radiating into the temple area and frequent but intermittent diplopia. His examination revealed a right hyperdeviation in the primary position together with a tiny exophoria.
His clinical findings were consistent with a mild weakness in the right superior/muscles although it was conceivable that it may have been damaged by the infection process.
In his first report Dr Agnello discussed treatment options which comprised firstly prescribing glasses to neutralise the vertical deviation when double vision was at its worse, that is to say at the end of day but not at other times. He also advised fusion exercises to improve the capacity to maintain control over the small vertical deviation and involving simple exercises with an array of prismatic devices. Final options were surgical intervention and frosted lens neither of which he would advise.
Dr Agnello also said that the wearing of glasses would be likely to alleviate the plaintiff's headaches.
When asked about the plaintiff's concerns that the glasses could be of no use to him because the double vision varied from time to time he felt that there was some merit in the proposition but that they would help to reduce the amount of vertical deviation and that they would be effective.
The fusion exercises are designed to improve coordination by the use of prismatic lens. He would need to do that for a few minutes every day and it would be of benefit to him. Under cross‑examination he said that the success rate was very high. He thought that there could be a significant improvement.
He thought that as to the wearing of glasses once one partially neutralises a vertical deviation, often the visual system takes over and brings the images together.
As to the prisms for his prism exercises it would require three prisms and occasional review by an eye specialist or optometrist. He thought that the prisms cost could be somewhere in the order of $40 to $80 each and a review about $50 to $60.

Professor Ian Jeffrey Constable

Professor Constable is an ophthalmic surgeon and Professor of Ophthalmology at the University of Western Australia since 1975. He produced two reports in this matter dated 15 September 2003 and 29 October 2004.
In his first report he said:
"Given that there was no fever of tachycardia nor obvious swelling of the orbit when examined on the first day by two different doctors, it would have been extremely difficult to make the relatively rare diagnosis of orbital cellulitis on the symptoms and signs. A CAT scan at that time may have shown an opaque sinus or thickened sinus mucosal membranes but would have been unlikely to show significant orbital changes, the inflammatory process being very early at that stage. It would not be common practice to order a CAT scan on every patient with unilateral retro‑ocular pain as an emergency procedure. Nor is it common experience that the diagnosis of orbital cellulitis is made early enough to prevent abscess formation in rapidly changing cases such as this. If very early diagnosis were achieved then it is reasonable to suggest that an orbital abscess and subsequent damage to ocular muscles and the need for surgery might have been avoided.
Since the residual disabilities, including decreased muscle movement leading to diplopia, were the result of the orbital abscess, it is reasonable to also infer that delay in diagnosis would make these disabilities more likely."
In summary, Professor Constable noted that orbital cellulitis was relatively rare and would present at Rockingham/Kwinana District Hospital perhaps no more than once every two or three years and for it to be clinically suspected there needs to be a set of clinical signs including redness around the eye lids, lid swelling, tenderness in the orbit and on eye movements, and fever. He said that a CT scan would in general only be ordered if there were some suggestive signs of this condition. He did not think it reasonable that casualty doctors would be expected to diagnose this rare condition prior to the onset of physical signs.
In his subsequent report, having read the report of Dr Raftos, he said:
"I remain of the view that in a regional hospital in December 1998 in the diagnosis of orbital abscess before the eye is proptosed forward due to accumulation of the infected material, before there is any double vision, and with normal vision and only slight redness and watering, an emergency department doctor would not necessarily be immediately prompted to order a CT scan. I do agree that early diagnosis and appropriate antibiotics might have prevented the sequelae of double vision from orbital fibrosis.
I would be surprised if the emergency department experts could argue that everybody with a headache or orbital discomfort without obvious ocular signs would, even today, undergo a mandatory CT scan. I agree that if an ophthalmic registrar had seen the patient (an ophthalmic registrar was not available in Rockingham/Kwinana Hospital at the time), they may have linked the previous history of sinusitis to possible orbital pathology and therefore put the patient into hospital for observation, CT scan when available, and intravenous antibiotics."
In examination on the rarity of orbital cellulitis Professor Constable said that it is a diagnosis that is missed in casualties because the casualty officers are not seeing it frequently. He said that it was blindingly obvious once it has become swollen as to what it is but you have to be quite aware of that condition to pick it up if they present early with retro‑orbital pain. He noted that this was a country hospital in 1998, recently upgraded and with no specialist care except on a consulting basis. He thought it was probably less likely to have been missed in a big teaching hospital where they have a CAT scan next door. He said:
"[B]ut to be arranging for people with headaches to go off for CAT scans at another hospital would not have been common practice except for patients whom they rightly or wrongly were seriously concerned about at the time. You wouldn't be sending off people for emergency CAT scans and indeed would be hard pressed to get the priority from another hospital unless you had strong signs that that would be done, so its about that, thinking back seven years, and its about a hospital just being upgraded at that time and its about a condition that's not common."
Professor Constable agreed in cross‑examination that sinusitis is a common association with orbital infection.
He was asked about the effectiveness of a CT scan in early stage in the following terms:
"Can I put to you in that context then that its unlikely that 24 hours prior to the CT scan having taken place that a CT scan could if it had been done 24 hours earlier would not have shown at least the inflammatory process taking place?‑‑‑That's a tough one because he only got his first symptom 36 hours before then, as I understand it, and the organism which he grew was a particularly nasty one and certainly orbital cellulitis can occur quickly, so the CAT scan 24 hours before in the absence of any proptosis, in the absence of any swelling of the front of the eye, I don't know. Maybe Yes, maybe No. I would be surprised …
I accept that the abscess itself may not have been formed? … No, that's right. It would have shown sinusitis and it presumably would have – because he's now getting the pain it would have shown inflammation of the wall lining of the orbit by then. It should have."
He went on to say that a CAT scan would have been useful.
Professor Constable agreed that pressure sensation behind the eye was consistent with the process of inflammation of the orbit but also said:
"We see pressure behind the eye in patients with eye strain, if they have one eye that is lazy or if they have double vision and they're forcing the two eyes together. You can get pressure there. We see it with often localised to an orbit from tension headache, we see it in patients with other pathologies in and around the orbit. Its quite a common symptom."

Dr David Mountain

Dr Mountain is currently the staff specialist at Sir Charles Gairdner Emergency Department and was until March 2003 the director of the Emergency Department at Sir Charles Gairdner Hospital. He has been involved in emergency medicine in one capacity or another since September 1989.
Dr Mountain produced an opinion re sinusitis said to have been started 20 May 2003 and a supplementary report dated 27 August 2003.
In the first of those reports Dr Mountain was of the view that the initial presentation did suggest that sinusitis should have been part of the differential diagnosis. However, the initial presentation was not that of a complicated sinusitis and it was both reasonable and indeed standard practice not to perform a CT scan at that stage.
Dr Mountain was then asked whether or not the provisional diagnosis of migraine was reasonable and formed the view that migraine would have been part of the differential diagnosis in this case for most conditions. Migraine and cluster headaches were described in the literature as being a cause for retro‑orbital pain. Whilst stating that sinusitis should have been part of the differential diagnosis the lack of a fever and toxicity on the patient's presentation made the diagnosis less likely. He said that patients with a bacterial infection in their sinuses would expect to have a high fever or severe pain that wouldn't go away with simple analgesia treatment. They would be systemically unwell. He thought that the diagnosis of migraine was reasonable.
Based on the symptoms recorded and the history given on 12 December 1998 he did not believe any practising emergency physicians would have entertained orbital cellulitis as a diagnosis on the features of such presentation. In examination he said that such patients had clear signs of involvement of the orbit, swelling around the orbit, redness, particularly in the tissues of the front of the eye, the eye itself would be red, a little swollen and bulging. There would be severe pain on eye movement and difficulty moving the eye and double vision on movement of the eye. The patient would be febrile and very toxic and unwell looking. He said that such a diagnosis would be very difficult on a patient who has none of these features.
As to whether the management at the hospital was reasonable he thought that the issue was whether or not sinusitis was a possible diagnosis and whether it required urgent imaging in that situation. Whilst he thought that a diagnosis of sinusitis should have been entertained he thought it extremely unlikely that normal emergency department management by experienced practitioners would have led to a different outcome. He thought that CT scanning should be reserved for patients with likely need of sinus operation/decompression or with signs of complicated disease. In his evidence he said that the CT scan was only really indicated if you believed there is a complex sinus disease, that is that there is a spread outside the sinuses. He said that there would be some physicians who might do a CT scan on a person who presents with a first headache but there were some who would not. His practice was not to do so. Indeed, in his report, he said:
"The take home message is that if this case had presented to almost any ED in Australia a CT scan would not have been performed on the same day. Indeed many would not have ordered one even as an outpatient unless symptoms persisted. Just as important is that it is unlikely that antibiotics would have been prescribed given the initial presentation as there was no fever, redness, systemic symptoms or purulent nasal discharge to suggest acute bacterial sinusitis."
The Sydney practice was put to him as explained by Dr Raftos. He said that it was not standard practice in Australia to have a cerebral CT of a patient with a first or worst headache. He said it was not the standard practice in emergency medicine in Western Australia in 1998. He also said in examination that his opinions were based on studies, text books, guidelines that are available and other received opinion which was of the same opinion that a CT was not indicated for a first headache unless there were other clear signs of suggested complex secondary disease. In the summary to his supplementary report he stated that he was almost certain that an attempt to arrange a transfer for an emergency CT scan would have been refused by the hospital being asked to accept the patient. The patient had no indication for urgent CT scanning as determined by current emergency medicine and other specialty recommendations and by current practice.
Dr Mountain was unshaken in cross‑examination. He was asked, in the absence of any record in the hospital notes that the pressure behind the eye had resolved that he would send the patient home he responded that if the patient was complaining of severe pressure still behind the eye he would be concerned to let him go but that he could not see any evidence for that.

Findings of fact

In this matter I make the following findings of fact:
1.On the plaintiff's admission to Rockingham/Kwinana Hospital there was no request for a scan. Further, I find that there was no request for a scan at the time of the plaintiff's discharge. Whether or not requests were made for a scan is not of great importance. What is important in this case is whether or not a scan should have been done. Nevertheless, I make these findings because of the way in which the plaintiff and his mother say the procedures at the hospital were undertaken and in particular in relation to the plaintiff's discharge. I find it inconceivable that had the plaintiff's mother been pressing for a scan and such scan being refused the plaintiff and his mother would have left the hospital in the circumstances that they did. According to the plaintiff and his mother at that time the plaintiff was still suffering from pain in his eye and yet the plaintiff and his mother, according to the mother's evidence at least, did not wait to see the doctor before leaving the hospital. Given the expressed concern and that they were only 20 minutes from Fremantle Hospital if a scan was really requested and required and no satisfaction was being obtained from the Rockingham/Kwinana Hospital one would have expected the plaintiff and his mother to have attended at the Fremantle Hospital. Further, the plaintiff's evidence and that of his mother as to the requesting of a scan at the time of discharge or just before discharge from hospital was at variance.
2.At the time of his discharge from the Emergency Department of the hospital the plaintiff had made a recovery to the extent that his headache had gone and his pain had settled. I make this finding partly on the basis of the hospital notes which were admitted into evidence by consent and partly on the basis of the evidence that was given. Much was made of the difference between the words "headache had gone 'and' pain settled". I think it is a matter of semantics. The nurse has clearly recorded at 1635 that the headache had gone. Whilst that nurse was not called to give evidence Dr Grainger who said that he would have seen the plaintiff before his discharge had seen those notes and it seems inconceivable that such a note would have been made without some reference to the plaintiff or his mother. The doctor's own note at 1649 was that the pain had settled. That is the history that he would have obtained from the plaintiff himself. Again, it seems inconceivable that he would have written those words had it been the case that the plaintiff was still complaining of pain. The plaintiff's evidence and that of his mother were at variance. The plaintiff said he saw a doctor before leaving whereas the mother said they did not. It is Dr Grainger's normal practice not to discharge a patient without first seeing them and I accept his evidence in that regard. Accordingly, I make the finding that at the time of the discharge from hospital the plaintiff's pain had settled. Whether it had completely gone is another matter but he was, on all outward appearances, clearly well enough to be returned home and to return to the hospital if the pain returned.
If the pain had not settled then, on the evidence I would have found that that fact had not been conveyed to the hospital staff prior to the plaintiff leaving.
The plaintiff described his pain as excruciating. If the pain had not been controlled by analgesia one would have expected to have seen the plaintiff return to the hospital at a much earlier time than he did. According to the plaintiff and his mother the plaintiff spent an uncomfortable night. Notwithstanding the evidence of the mother that the plaintiff was moaning and complaining that the pain was still there and that he would have to put up with it and she could hear him from his room on the other side of the house there is no evidence that she attended to him to see whether or not he ought to be returned to the hospital at that time but left it until the next morning after he had got up late.
3.A CT scanner was not available at the Rockingham/Kwinana hospital in December 1998. This seems to be borne out by all of the evidence.
4.Ophthalmological advice was available at Fremantle Hospital and could have been obtained by telephone. This appears to be borne out by the evidence of Professor Constable and by Dr Grainger.
5.On the presentation of the plaintiff and particularly having regard to my finding that the initial treatment had relieved the symptoms (including the pain behind the eye) it was unlikely that even if advice had been taken from Fremantle any other course of treatment would have been undertaken at that time. The evidence clearly shows that on that presentation a patient would only be advised to return if the pain returned which is precisely what did happen.
6.If a CT scan had been carried out on 12 December 1998 the infection behind the eye or at least some signs of changes would have been found. This is borne out by the evidence of most of the doctors including medical practitioners called on behalf of the defence although I am conscious of the somewhat equivocal statement of Professor Constable to this effect.
7.If the patient had been commenced on a course of antibiotics on 12 December 1998 the subsequent damage to the plaintiff's eye would have been avoided or at least reduced. Again, I make this finding based upon all of the medical evidence which appears to be consistent in this respect to the extent that on the balance of probability that would have been the outcome.
8.The damage to the ocular muscles was caused by the orbital infection that the plaintiff suffered. Again, all of the medical evidence supports this proposition including that of Dr Ross Agnello.
9.The plaintiff now suffers a permanent disability comprising damage to the ocular muscle which results in him suffering headaches from time to time, particularly at the end of the day, and diplopia. However, I also find that by simple treatment, namely exercises using prisms and the wearing of glasses (but only at times when required and particularly at the end of the day) these disabilities can be overcome.

Duty of care

There can be no doubt that a medical practitioner is under a duty of care to his patient; Rogers v Whitaker (1992) 175 CLR 479. In Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 at 881, Lord Scarman said:
"The Bolam (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment."
In Sidaway v Board of Governors of Bethlem Royal Hospital [1984] QB 493 Donaldson MR at 513 noted that the requisite standard of care had to be tested in the first instance by reference to the way in which other doctors discharged their duty but that the definition of the duty of care was a matter for the law and the courts. He went on to say at 514:
"The duty is fulfilled if the doctor acts in accordance with a practice rightly accepted as proper by a body of skilled and experienced medical men."
In Rogers at 487 the Court said:
"In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant professional trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied."
In Rogers the court noted [489‑90]:
"The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single and comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. . . .
There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patients contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patients choice to undergo it. In legal terms, the patient's consent to the treatment maybe valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice."
In Hunter v Hanley [1955] SLT 213 at 217 Lord President Clyde said:
"In the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…"
In Whitehouse v Jordon [1981] 1 WLR 246 Lord Fraser of Tullybelton after having stated that for the purposes of negligence in that case, that the trial judge had noted that:
"a failure … to exercise the standard of skill expected from the ordinary competent specialist having regard to the experience and expertise that specialist holds himself out as possessing."
noted that the skill and expertise to be considered were those applying in 1969 and 1970 and that:
"the true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand it is an error that such a man acting with ordinary care might have made then it is not negligent."
As noted above in Rogers the Court maintained that distinction between diagnosis and treatment [489-490].
In The Board of Management of Royal Perth Hospital and Another v Frost, unreported; FCt SCt of Western Australia; Library No 970069; 26 February 1997, Malcolm CJ at p 14 cited Browne-Wilkenson VC in Wilsher v Essex Area Health Authority [1987] 2 WLR 425 where he said, when considering the general standard of care required of a doctor:
"But the position of the houseman in his first year after qualifying or of someone … who has just started in a specialist skill in order to gain the necessary skill in that field is not capable of such analysis. The houseman has to take up his post in order to gain full professional qualification; anyone who … wishes to obtain specialist skills has to learn those skills by taking a post in a specialist unit. In my judgment, such doctors cannot in fairness be said to be at fault if, at the start of their time, they lack the very skills which they are seeking to acquire.
. . .
In my judgment so long as the English law rest liability on personal fault, a doctor who has properly accepted a post in a hospital in order to gain necessary experience should only be held liable for acts or omissions which a careful doctor with his qualification and experience would not have done or omitted. It follows that in my view the health authority could not be held vicariously liable (and I stress the word vicariously) for the acts of such a learner who has come to those standards, notwithstanding that the post he held required greater experience then he in fact possessed.
. . .
In my judgment a health authority which so conducts its hospital that it failed to provide doctors of sufficient skills and experience to give the treatment offered at the hospital may be directly liable in negligence to the patient. Although we were told in argument that no case had ever been decided on this ground and that it is not the practice to formulate claims in this way I can see no reason why, in principle, the health authority should not be so liable if its organisation is at fault; see McDermid v Nash Dredging & Reclamation Co Ltd [1986] QB 965 especially at p 978-979."
In Frost his Honour the Chief Justice noted, at p 16:
"In my opinion the distinction between the vicarious liability of the hospital for the negligence of an individual doctor on the one hand and the direct liability of the hospital for negligently failing to provide skilled diagnosis and treatment in an area of service that it was offering to the public, on the other is relevant in the present case."
In the same case his Honour noted:
"The question is not whether the respondent received the standard of care which was reasonably expected from a resident in Dr Whitaker's position in the light of her skill and experience. It is whether he received the standard of care which he was entitled to expect from a hospital which held itself out as having the staff and facilities to diagnosis and treat persons suffering from a suspected heart attack."

Application of the law to the facts

I accept the evidence of what the expert medical witnesses have to say in this case. But what comes out of that evidence is that there is a difference of opinion as to what is required for the purposes of diagnosis in a case such as this (cf Sidaway and Rogers). On the one hand Drs Raftos and Keldoulis say that a CT scan should have done on the presentation of this plaintiff. The evidence of Professor Constable and Dr Mountain is that such a scan would not be normally be done on such a presentation in Western Australia in 1998 and particularly in the circumstances of a patient such as the plaintiff presenting at the Rockingham/Kwinana Hospital.
All the experts agree that the complaint with which the plaintiff was finally diagnosed is a very rare complaint but nevertheless one that is potentially disastrous.
Dr Raftos works within a health system and in a place that has facilities whereby diagnosis of exclusion by the most sophisticated technology can be employed. That was not the case in 1998 at the Rockingham/Kwinana Hospital. The evidence of those who practice in Western Australia is that on the presentation of this plaintiff one would not go to the stage of scanning.
I accept the evidence of Dr Mountain that even today such diagnostic tools would not be warranted on this presentation. Save for the pain behind the eye all the usual symptoms of optical cellulitis were absent and it is easy to be wise after the event.
A wrong diagnosis is not necessarily negligent and in this case that is particularly so given my findings that according to the patient the pain had settled.
I have set out the alleged particulars of breach of duty of care set out in the statement of claim and in relation thereto;
1.It seems to me that the defendant, through its employees at Rockingham/Kwinana Hospital did act appropriately on the history as presented by the plaintiff on his first attendance. I accept the evidence of Dr Mountain and Professor Constable that whilst sinusitis might have been considered, the history was consistent (as appears to be the general consensus) with migraine and appropriate treatment was given for that.
2.It is alleged that the defendant failed to perform investigations but it appears that considerable investigation was carried out by Dr Schenk. At the end of the day it came down to whether a CT scan should have been done. I have accepted the evidence of Professor Constable and Dr Mountain as to this and I am not satisfied that such an investigation was required on the history given and presentation on 12 December 1998, (cf Whitehouse v Jordan)
3.The defendant was not negligent in diagnosing that the plaintiff was suffering a migraine. This is not a case about that diagnosis. This is a case about whether a differential diagnosis ought to have been ruled out by scanning.
4.It is said that the defendant failed to diagnosis that the plaintiff was having an inflammation such as orbital cellulitis which would have warranted immediate investigation by CT scan of the skull and orbital sinuses. That allegation is suggestive of the scan being dependant upon the diagnosis of the inflammation rather than to rule it out. There was no evidence of inflammation or sinusitis on examination.
This case comes down to the question, as counsel for the plaintiff put it, to CT or not to CT.
The true test so far as diagnosis and treatment is concerned is, with respect, correctly described by Lord President Clyde in Hunter v Hanley (supra). Whilst there is a difference of opinion in this case the evidence supports the finding that in 1998 at Rockingham and with (or without) the facilities of CT scanner a doctor of ordinary skill in emergency medicine would not have acted differently. In those circumstances I find that the allegations of negligence as set out in the statement of claim have not been made out.
I observe that this case was put on the basis that the defendant was vicariously liable for its staff (see par 14 of the statement of claim) (note also Board of Management of Royal Perth Hospital v Frost (supra) at p 14-16 per Malcolm CJ). The case was not put on the basis that the defendant did not have in place proper procedures or protocols (see the evidence of Dr Raftos) given that a CT scanner was not available in Rockingham. The case was not run on that basis where, had it been so run, a different line of enquiry might have been undertaken. It is by no mean clear as to who's negligence the defendant is said to be vicariously liable for whether it be Dr Schenk, the Registrar to whom she spoke or Dr Granger and on what basis. So far as Dr Schenk is concerned I note that she was a first year resident doctor and regard must be had to what was said in such circumstance in Wilsher.
Nevertheless I am satisfied that there was no such negligence having regard to the standards of an ordinary skilled person or the practice followed and accepted by reasonable body of opinion in the circumstances that existed in 1998 at the Rockingham/Kwinana Hospital and in the circumstance of this case.

Result

In the circumstances the plaintiff's claim should be dismissed.

Provisional assessment of damages

Notwithstanding my finding on liability it is appropriate that I record my findings in relation to damages and make a provisional assessment.

General Damages

There is no doubt the plaintiff condition was painful and, at his age, frightening. He had to undergo surgery and a period in hospital. He has been left some minor scaring and otherwise has made a good recovery with some minimal residual disability. That residual disability, by way of double vision and headaches, can be alleviated by exercise and by wearing prescription glasses when needed. There is no evidence that that disability will progress and there is little evidence as to the extent to which it will interfere with the plaintiffs enjoyment of life.
In the circumstance, whilst the condition could have been disastrous it is fortunate for the plaintiff that it was not and he has made a very good recovery. In the circumstance I am of the opinion that the award of damages under this head would be $12,500.

Loss of earning capacity

Past Loss of earning capacity

The plaintiff said that he wanted to join the navy. However, I am not satisfied on the evidence that he would have done so. It seems to me that his desire was formed at a young age. There was no evidence as to what steps he had taken to enter the navy or indeed, more importantly, that he could not join the navy with the disabilities that he suffers. There was some evidence that he tried to get into the army reserve but again the evidence on this was very sparse.
The plaintiff's schooling was not what he said it was. He was not as good a student as he wanted the Court to believe. One is left to wonder whether he would have been able to join the navy in any event.
The plaintiff's residual disabilities are not severe and it is hard to see that, apart from a short period after the operation when he could not attend his causal employment, what loss he has suffered or that his prospects of employment have been effected in any way at all. He appears to suffer headaches and double vision at the end of the day but not all day.
The plaintiff was unable to work at the supermarket until the end of January 1999. There was no evidence of what he earned which was described in terms as pocket money from his work on Thursdays and Saturdays. It appears that he was not earning much and indeed that was one of the reasons why he gave up that work. Given the absence of any evidence I cannot make any assessment for the past loss of earnings and accordingly make no allowance.

Future loss of earning capacity

As a result of my findings above it seems to me that there should be no award for the future. It has not been demonstrated that the plaintiff's disability would or could be productive of financial loss. I am conscious that this is a case where the plaintiff was only doing casual work before this incident and therefore I cannot rely on the past as any indication of what may occur in the future. However, it seems to me that there is nothing in the nature of the disabilities that would prevent the plaintiff from working or restrict his perimeter of employment. After all, all that is required of him is that he wear glasses and then only in the evenings and when required.
Gratuitous services
The plaintiff's mother had to look after him and take him to appointments. It was conceded by the plaintiff that this was not much and it was conceded that a rate of $14 per hour would be appropriate. Thirty to fifty hours was accepted as being a reasonable period. Using the mid line of 40 hours at $14 per hour I would have allowed $560.
Future medical expenses
It is clear from the evidence of Dr Agnello that the plaintiff ought to have prisms to help train his eyes. Using the mid line price of $60 and that the plaintiff requires three prisms I would allow the sum of $180. He would require some checkups. The number is uncertain. I would all another $100 in this regard. The plaintiff would also require prescription glasses. No evidence was given of the cost of these or the frequency but I would make an allowance for them so that, for all future medical expenses, I would allow an overall sum of $1000.
Special damages
No special damages were proved in this case and I make no allowance.
Summary of damages
Accordingly, but for my findings on liability I would have awarded damages as follows:
General damages  $12,500
Gratuitous services                   $     560
Future medical expenses           $ 1,000
Total  $14,060

Conclusion

In this case, liability not having being made out, the plaintiff's claim should be dismissed and there should be judgment for the defendant.