Leonard v Kulatilake
[2019] ACTMC 9
•21 March 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Leonard v Kulatilake |
Citation: | [2019] ACTMC 9 |
Hearing Dates: | 20 – 22 June 2018, 20 & 23 November 2018 |
Last submissions: | 25 February 2019 |
DecisionDate: | 21 March 2019 |
Before: | Magistrate Theakston |
Decision: | 1. Judgment be entered for the plaintiff in the amount of $42,565. 2. The defendant pays the plaintiff’s costs of the proceedings. 3. Order 2 does not take effect during the period of 14 days after the making of these orders, and continues not to take effect thereafter if a party notifies the associate to Magistrate Theakston and the other party within that period in writing that they wish to be heard in relation to a different order as to costs. |
Catchwords: | MEDICAL NEGLIGENCE – general practitioner – duty of care –excision of blue naevus – re-excision performed – infection – causation – liability – whether or not second excision caused infection DAMAGES – quantum – special damages – general damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45 |
Cases Cited: | Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Rogers v Whitaker (1992) 175 CLR 479 |
Parties: | Marlene Joy Leonard (Plaintiff) Dr Chanditha Kulatilake (Defendant) |
Representation: | Counsel Mr J Masters & Ms N Watson (Plaintiff) Ms K Oldfield (Defendant) |
| Solicitors Capital Lawyers (Plaintiff) Ken Cush & Associates (Defendant) | |
File Number: | CS 835 of 2016 |
MAGISTRATE THEAKSTON:
Background
During the summer of 2013-14 Dr Kulatilake, a general medical practitioner, removed a mole from Ms Leonard’s right ankle. Dr Kulatilake re-excised the site seven weeks later after observing a further growth. A serious infection followed that second procedure. Ms Leonard claims that Dr Kulatilake was negligent in relation to performing an unnecessary procedure and failing to adequately advise her about her treatment options.
This decision is structured as follows:
(a)relevant law;
(b)agreed facts;
(c)disputed facts;
(d)expert medical evidence;
(e)question of liability; and
(f)assessment of damages.
Ultimately I have found liability and will award the damages described below.
Law
In order to succeed in common law negligence, the plaintiff must establish the existence of a duty of care, a breach of that duty, and the causation of damage: Wallace v Kam [2013] HCA 19; 250 CLR 375 (‘Wallace’) at [7]. In that decision the High Court described the first and second elements, in the context of medical services, at [8]:
The common law duty of a medical practitioner to a patient is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment.
In an earlier High Court decision of Rogers v Whitaker (1992) 175 CLR 479 (‘Rogers’), the majority stated at 487:
In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".
(Footnotes omitted and emphasis added)
For completeness I note that the Bolam principle originates from the decision in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The majority in Rogers adopted at 484 the description of the principle as stated by Lord Scarman in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871:
The Bolam 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 adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.
The High Court in Wallace at [8] made the following observations about the duty to disclose information about the risks associated with treatment:
A component of that single comprehensive duty is ordinarily to warn the patient of "material risks" of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment. … The duty to inform the patient of inherent material risks is imposed to enable the patient to choose whether or not to run those inherent risks and thereby "to avoid the occurrence of the particular physical injury the risk of which [the] patient is not prepared to accept".
(Footnotes omitted)
Within the ACT, the common law for negligence is now augmented by the Civil Law (Wrongs) Act 2002 (ACT), which provides, inter alia:
s 42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
s 43 Precautions against risk—general principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
s 44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
In relation to the third element of negligence, namely the causation of damage, the High Court in Wallace made the following observations:
[10] For particular physical injury sustained by a patient as a result of medical treatment the patient has chosen to have carried out to be compensable, it must be determined to have been caused by the particular failure of the medical practitioner to exercise reasonable care and skill to warn the patient of one or more material risks inherent in that treatment.
[11] The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. In particular, the application of the first question, and the existence of the second, have been obscured by traditional expressions of causation for the purposes of the common law of negligence in the conclusory language of "directness", "reality", "effectiveness" and "proximity".
10. The High Court went on at [12] to acknowledge the modern statutory requirement for a court to separately consider the two components of causation. In the ACT, the Civil Law (Wrongs) Act 2002 (ACT) provides that requirement and reads:
s 45 General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability).
…
Facts
Facts not in issue
On 9 December 2013 Ms Leonard attended the Gungahlin Medical Practice and was seen by Dr Kulatilake. Ms Leonard expressed concern about two moles, one on her chest and the other on her right upper ankle. The mole on Ms Leonard’s ankle was 5 x 4 mm in size. There is minor dispute about its colour, but nothing turns on that. Dr Kulatilake was not concerned about the moles, and assessed them as being benign and indicated that they need not be removed. Ms Leonard was concerned about the appearance of the moles and requested they be removed.
Dr Kulatilake excised both moles that day. Two stitches were placed in the resulting wound on the ankle. The procedure went smoothly and Ms Leonard left the surgery with no restriction on her mobility and without analgesics being prescribed. There were no complications and little to no pain following the procedure.
On 12 December 2013, the biopsy from the ankle was examined by a pathologist, who reported to Dr Kulatilake that:
Sections of the skin lesion show a blue naevus, comprising dendritic type pigmented spindle cells within the dermis, focally involving the deep margin. No dysplasia or malignancy seen.
The wound healed unremarkably, and on 18 December 2013, Ms Leonard returned to the surgery and Dr Kulatilake removed most of the stitches on the ankle. A small part of one stitch could not be removed, and was left to be shed later through the natural healing process. Dr Kulatilake informed Ms Leonard that the results of the biopsy were clear.
In late January 2014, Ms Leonard noticed that a growth of sorts had developed at the site of the mole on her ankle. It was twice the size of the original mole, shaped like a foetus, slightly raised and blackish red in colour.
On 23 January 2014 Ms Leonard attended the surgery again and sought advice from Dr Kulatilake. Dr Kulatilake provided reassurance and suggested she was not overly concerned and that they should wait and keep an eye on the area because the pathology had come back clear. It was common ground that there was no discussion about specialists.
That night Ms Leonard inadvertently shaved off the top of the growth while shaving her legs. This left a slight red dot at the site.
That night Dr Kulatilake conducted online research about the growth. She initially used the Google search engine and located dermatology papers at the US websites PubMed and Dermatology Advisor.
The next day on 24 January 2014, Dr Kulatilake telephoned Ms Leonard and left messages for her to return the call.
On 25 January 2014, Ms Leonard telephone Dr Kulatilake. Dr Kulatilake advised that she had undertaken some research and there was a very small chance that something could turn cancerous and that she wanted Ms Leonard to come in straight away and have the growth removed again. Ms Leonard explained that the site had been shaved and was now only a red dot and that she could not attend straight away because she was going away for a holiday.
On 3 February 2014, Ms Leonard again attended the surgery. Dr Kulatilake was finishing up at the practice and had attended that day for administratively purposes and was available to excise Ms Leonard’s growth. Dr Kulatilake examined the site. There is a dispute about how the site appeared at that time. She again recommended that the new growth be excised. There is also a dispute about what advice was provided by Dr Kulatilake. Ms Leonard agreed to have the growth removed, signed a form in relation to the procedure and the procedure was conducted. The procedure took about 30 minutes and there was a lot of bleeding. Dr Kulatilake was required to use four tension sutures to close the wound, in addition to normal stitches. Similar to the first excision, the re-excision involved a horizontal incision along a crease in the skin.
Ms Leonard went straight home and elevated her leg. When the anaesthesia wore off the wound was painful. The following day she attended a pre-arranged morning tea at work, which was arranged to celebrate her 50th birthday. Her daughter drove her there and she used crutches to move around. During the two days that followed the procedure the pain became worse and the foot became extremely swollen. Ms Leonard had difficulty walking. She could not weight bear on the foot.
On 5 February 2014, Ms Leonard returned to the surgery and was seen by a different medical practitioner. The foot was extremely swollen, red and hot, and an infection was visible halfway up her calf. At that stage the magnitude of the pain was 10 out of a possible 10. Ms Leonard was advised to go straight to hospital.
Ms Leonard attended the Accident and Emergency Department at The Canberra Hospital. She was diagnosed with cellulitis. During a very painful 10 minute procedure the stitches were removed. She was admitted to the hospital and administered Endone, an anticoagulant and intravenous antibiotics.
Three days later on 8 February 2014, Ms Leonard was discharged from hospital and referred to the Infectious Disease Clinic at the hospital.
On 10 February 2014, a pathologist examined the excised growth and reported observing well marked scarring consistent with the previous excision, no evidence of residual blue naevus, and no indication of malignancy.
For a period of two weeks the foot remained swollen and painful. During that time the upper layer of skin on the foot lifted away. Ms Leonard was still unable to weight bear on the foot. She used crutches and, on occasions, crawled around her home on her hands and knees.
Ms Leonard remained off work until 10 March 2014. During that period, she received full pay from her employer, the Commonwealth, but consumed 24 days of personal leave. Then for two weeks she worked reduced hours. During that period, she consumed approximately 25 hours of flex-leave that she had earlier accumulated.
The use of sick leave later restricted her use of that leave to care for her grandchildren when they were ill and to care for her husband when he had coronary stents inserted.
Ms Leonard was unable to drive for a period of time after the procedure, and her husband dropped her off and picked her up from work and transported her to and from a number of medical appointments.
At all material times, Ms Leonard’s grandchildren continued to be cared for by herself and or her husband each Tuesday, Thursday and Friday nights and on Saturdays. Ms Leonard was less able to assist with that care for the period immediately after the re-excision. However, because she was not attending basketball, she was at home more often than ordinary. She returned to providing her usual care of the grandchildren in April 2014.
Ms Leonard was on pain medication for approximately four weeks following the second procedure.
The wound was not closed again with stitches, and healed slowly. Ms Leonard is now left with moderate scarring visible at and adjacent to the site of the original mole. The area can be hidden by a sock when, for example, she is refereeing basketball. However, it is visible when wearing open shoes.
Prior to the second procedure, Ms Leonard frequently refereed basketball games and had been doing so for 30 years. She refereed up to 10 games a week. During her initial recovery she was not able to participate in that activity. Later, she gradually increased the number of games she refereed each week.
At times when refereeing, Ms Leonard has suffered irritation and inflammation at the site of the infection. This has limited the number of games she has been able to referee. Consequentially, she also replaced some refereeing duties with referee coaching duties. The last episode of the inflammation was in March 2018. She has since changed her shoes to one with a different style tongue. She has been able to referee five to eight games a week without triggering a further episode. Her reduction in refereeing has been offset to some degree by assuming the other duties as a referee coach.
Ms Leonard was also required to change the footwear she uses for work and socialising.
Ms Leonard is self-conscious about the appearance of her right ankle. She covers it up with make-up to avoid others seeing the scar and enquiring about what happened. She has described putting on weight and being moody, frustrated and depressed. There was no clinical evidence about the degree of those mental health features.
Appearance of the subsequent growth
Dr Kulatilake described the subsequent growth she saw on 23 January 2014 as being almost the same size or a little bigger than the original mole. She repeated this inconsistency throughout her evidence conceding that she had difficulty being certain due to the passage of time. She also deferred a number of times to the description in the histology report. Dr Kulatilake described the growth as appearing almost the same size when it was re-excised on 3 February 2014, and it had not grown further.
Ms Leonard described the growth as initially being in the shape of a foetus and about double the size of the original mole, and then being less significant after she inadvertently shaved across it when shaving her legs. She was asked to draw the size and shape of the various growths. The size of the initial re-growth was depicted as being larger than the original mole, and the size of the re-growth following being shaved was depicted as being slightly smaller than the original mole. Ms Leonard also described the skin around the re-growth on 3 February 2014 as being slightly red.
Both Ms Leonard and Dr Kulatilake essentially described the growth as being dark in colour as at 23 January 2014. Ms Leonard described the growth as being a red dot on 3 February 2014.
The histology report described the subsequent growth that was re-excised as being 6 x 5 mm.
Dr Kulatilake’s evidence about the appearance of the growth on both occasions was far less certain than that of Ms Leonard’s. This is perhaps not surprising considering the different opportunities to observe the growth, the passage of time and Dr Kulatilake’s and Ms Leonard’s different perspectives in relation to the growth, namely one as the doctor and one as the patient. In those circumstances I prefer the evidence of Ms Leonard, tempered only by the dimensions described in the histology report.
Accordingly I find that on 23 January 2014 the growth was dark in colour, in the shape of a foetus and about 7 x 5 mm in size. As of 3 February 2014 the growth was red in colour 6 x 5 mm in size and surrounded by skin that was slightly red.
Advice provided by Dr Kulatilake
Ms Leonard described calling Dr Kulatilake on 24 January 2014 and being told that Dr Kulatilake had done some research and discovered there was a slight chance that the growth had turned cancerous and that she should come in straight away and have it re-excised.
Dr Kulatilake described not going into too much detail during the call, but indicating she had undertaken research and had some concerns because the mole had regrown and the medical literature mentioned that melanoma and blue naevus may be difficult to differentiate. She went on to suggest that she should either refer Ms Leonard to a specialist or re-excise and biopsy the growth. When giving evidence, Dr Kulatilake described an earlier experience when working at a practice in Yass, and spending four hours on the phone attempting to arrange an urgent referral to a dermatologist. She was of the view that it would be months before Ms Leonard could see a specialist.
It is common ground that Dr Kulatilake requested Ms Leonard to attend the surgery and have the re-excision biopsy. I accept on the balance of probabilities that Dr Kulatilake also mentioned briefly the option for Ms Leonard to see a specialist. However, I find that Dr Kulatilake strongly expressed a preference for the re-excision over a referral to a specialist.
On the day of the second procedure Dr Kulatilake presented Ms Leonard with a form that acknowledged receipt of a description of the procedure, advice about alternative treatments, and advice about the associated risks and possible complications. Ms Leonard signed that form. The form appears to be based on a standard template used by the Gungahlin Medical Practice with only a brief description of the procedure and Ms Leonard’s name added. While it listed the subject of items said to have been discussed, it did not contain any detail of them. On its face it contained no further description of the procedure, advice about alternative treatments or advice about associated risks or possible complications.
Ms Leonard conceded she had read the entire form, but claimed that nothing else was discussed about the risks and she was given no other option but to have the growth re-excised. She indicated that she did not know what questions to ask and was reliant upon the advice of Dr Kulatilake. She recalled being told that Dr Kulatilake had resigned from the practice and had come in especially to conduct the procedure.
Dr Kulatilake indicated that she went through the form and discussed the various risks and possible complications, including infection and mobility issues. She conceded that she did not disclose to Ms Leonard that the growth may simply be a scar.
Ms Leonard was booked in to attend the surgery on that day for the purpose of a re-excision.
I place little wait on the fact that Ms Leonard signed the form. That of itself does not corroborate the claim that advice about risks was provided. However, the act of Ms Leonard taking the time to read through the form would have provided a clear pause in the consultation, and therefore an opportunity for at least a brief mention of the risks involved. I am not satisfied that the description of the risks would have so closely aligned with the subsequent complications experienced by Ms Leonard as suggested at points during Dr Kulatilake’s evidence. While Dr Kulatilake claimed she would have discussed each item on the form, the language she used was what she normally did, and when asked whether she had an independent recollection of the consultation could only go as high as saying ‘Yes, I think so’. I also accept that Ms Leonard was surprised about the magnitude of the procedure. This is consistent with her initial plans to attend work the following day, including her birthday morning tea, and her subsequent decision to take a number of days off work. It is also clear from the evidence that Dr Kulatilake had a clear preference to excise the re-growth, rather than to pause and engage the assistance of a specialist.
I find that on 3 February 2014, Dr Kulatilake did briefly mention the risks that may result due to the re-excision of the growth, including the possibility of infection and reduced mobility. I further find that the option of a referral to a specialist was not seriously discussed nor was the option to wait further to see if the growth changed. Nor was it discussed that the growth may simply be a scar or otherwise part of the healing process.
It is common ground that Dr Kulatilake did not at any stage indicate to Ms Leonard that Dr Kulatilake could telephone a specialist for professional guidance about treatment options.
Dr Kulatilake’s account
Dr Kulatilake acknowledge that by 18 December 2013, when Ms Leonard had the stitches removed and was informed about the pathology results, she knew there was nothing to worry about in relation to the mole excised from Ms Leonard’s ankle. She also observed nothing sinister about the site when she examined it again on 23 January 2014. She knew at that time the growth was not cancerous. Following her research that night on the internet she did not form the view that the growth was cancerous, but it may possibly be a pre-cancerous lesion. That is, one day it might turn into cancer. However Dr Kulatilake had concerns, which she described as not being minor, and invited Ms Leonard back to the practice to have the growth re-excised. As she was due to leave that practice, she explained to Ms Leonard that if she was to perform the procedure, it had to be done by her last day on 3 February 2014.
When Dr Kulatilake saw the growth on 3 February 2014, she observed it had not grown further. From her internet research, she was concerned that it may be difficult to differentiate blue naevus from melanoma, because melanoma can mimic the features of blue naevus. Dr Kulatilake was not aware of this before performing the internet search. While she had histological confirmation that the original mole was a blue naevus, she was uncertain if the growth might be something else. She conceded that on the information available there was no basis to characterise the growth as an emergency for the purpose of fast tracking a referral to a dermatologist. She made no attempts to contact a specialist. She was of the view that the only way to determined whether the growth was a mole or a scar and to do so as soon as possible was by an excision biopsy.
I accept this evidence by Dr Kulatilake and make findings accordingly.
Expert medical evidence
Two separate sets of expert witnesses gave their evidence concurrently during the hearing.
Prof Emery and Dr Lancaster
The first set included Prof Jon Emery and Dr Mary-Anne Lancaster. Both experts were qualified and practising general practitioners with significant experience, but with very different backgrounds.
Prof Emery’s experience includes academic research and teaching in addition to his ongoing clinical experience since qualifying to practice in 1996. His research has involved the assessment of cancer risk in general practice, including skin cancers. He also teaches skin cancer detection and diagnosis in the context of general practice, and is the lead author for a chapter on that subject within a guide for general practitioners, titled The Red Book and which is published by the Royal Australian College of General Practitioners. He has written a significant number of published medical papers, completed a PhD in 2000 in relation to primary care and has supervised a number of postgraduates students.
Dr Lancaster has practiced full time as a general practitioner in Melbourne since qualifying to practice in 1990.
Both witnesses agreed on a number of issues, including:
(a)It was appropriate for Dr Kulatilake to advise Ms Leonard on 23 January 2013 to keep an eye on the ankle growth and wait to see if it changed in a sinister way or instead progressed through a process of normal healing.
(b)It is appropriate for a general practitioner to contact a patient, after doing further research, if they have something to advise the patient.
(c)The two key risks to advise a patient about when removing a skin lesion are the risks of infection and scarring. Additionally, the patient should be informed that scarring is unpredictable.
(d)A re-excision and an excision on a lower limb, each carry a slightly higher risk of infection and therefore scarring, compared to other excisions, and this should be explained to a patient in a qualitative way, in order to allow the patient to weigh up the benefits of doing the procedure against the potential risks.
(e)General practitioners at their practices are competent to excise skin lesions, except when such lesions are too large or located on particular parts of the body.
(f)A general practitioner should expect it to be harder to close a wound following a re-excision, compared to the initial excision. This is because a greater amount of skin and tissue is removed.
(g)It was appropriate to re-excise the growth using a horizontal incision and tension sutures as carried out by Dr Kulatilake.
(h)A blue naevus is usually clinically diagnosed and is a common non-malignant lesion that can usually be left alone.
(i)There are reports that moles that were diagnosed as blue naevus were later diagnosed as melanoma. That potential is very, very, low. The experts were not aware of any such reports where the initial diagnosis was made based on a histological examination of a biopsy. Consequently, a malignant blue naevus is not considered as an option during the process of differential diagnosis in general practice.
(j)The possibility that the regrowth was a malignant lesion, within six weeks of a histological diagnosis of a benign lesion, is infinitesimally small.
However they did not agree on everything. Critically there was a difference in opinion about whether Dr Kulatilake should have conducted the re-excision without first seeking guidance from a dermatologist.
Prof Emery was of the view that in circumstances such as those that Dr Kulatilake found herself in after performing the online research, a reasonably competent general practitioner should initially seek guidance from a dermatologist about the actual possibility the growth may be malignant, what would be the best way to treat the growth, and whether to urgently refer the patient to the dermatologist. He explained that the guidance should be sought before discussing the issue with the patient or performing the re-excision. He explained that it was so unusual to be so unsure about the likelihood of a malignancy that the question was outside of Dr Kulatilake’s area of expertise. Rather than relying upon online reports she should have sought guidance from a specialist.
Dr Lancaster explained how she would have personally responded in the situation, rather than expressing an opinion about what a reasonably competent general practitioner would do. She would not have sought guidance, but instead simply re-excised the growth. She explained that she would not be able to ignore it and would need to do something about it. Even if a specialist had told her the chances of it being malignant were ‘absolutely infinitesimal’, she would not have put up with the concern and instead removed it.
Somewhat inconsistently, Dr Lancaster later explained that she would not contemplate attempting to remove a malignancy with a view to take the margins, but rather take only a biopsy. If the biopsy turned out to be malignant she would refer the patient to a specialist. She explained a range of ways to take biopsies that did not necessarily involve the complete removal of a lesion.
Dr Lancaster also explained that she would have be frank with the patient, conceding to the patient that she may be being paranoid, suggesting that she should never have done the research and acknowledging that the possibility was extremely low. With that disclosure she would recommend removing the growth and have it histologically examined.
I prefer and accept the evidence of Prof Emery. His reasoning follows a logical risk management approach that recognised an insufficiency in knowledge and attempted to balance the competing risks. In contrast I found the evidence of Dr Lancaster internally inconsistent and unnecessarily reactive in nature. However, I was impressed with Dr Lancaster’s suggestion of a frank disclosure of personal reasoning to the patient.
Assoc Prof Shumack and Dr Tonks
The second set of expert witnesses involved Assoc Prof Stephen Shumack and Dr Anthony Tonks. Assoc Prof Shumack is a specialist dermatologist. In addition to his clinical practice, he teaches at University of Sydney and Royal North Shore Hospital. He is also the chair of the review committee for the update of the Cancer Council of Australia non-melanoma skin cancer guidelines for general practitioners. Dr Tonks is a specialist plastic and reconstructive surgeon, who deals with skin conditions, including cancers and scar revision, along with other forms of surgery. He is involved in teaching general practitioners in relation to surgery and surgical matters for skin lesions.
Both witnesses agreed on a number of aspects of their evidence. This included:
(a)General practitioners are ordinarily competent to diagnose and manage skin lesions. However, they may refer issues of diagnosis and or treatment, both medical and surgical, to a dermatologist; and issues of more complex surgery to a plastic surgeon. However, there is some commonality of the work performed by each specialisation, including dermatologists performing surgery and plastic surgeons performing biopsies. Plastic surgeons are preferred when a lesion is large or the enclosure of a wound is expected to be difficult.
(b)A blue naevus is by definition a benign lesion and they are extremely common. They are easy to diagnose both clinically and histopathologically.
(c)Histopathology is the gold standard for diagnosis, but it is not 100% accurate and it therefore needs to be considered in light of the clinical diagnosis and the history of the lesion. Having said that, the histological report for Ms Leonard’s initial excision was short and that is indicative of a straightforward and clear cut diagnosis.
(d)Blue naevus do not require therapy, and are treated by providing the patient with reassurance. Notwithstanding this they may be removed at the request of the patient, but the patient should be informed about the potential for scarring, and that potential is much greater in specific areas, for example the ankle. It may be in a patient’s best interest not to have the lesion removed.
(e)A diagnosed malignant lesion should be treated by surgical excision, with appropriate margins removed, and submitted for histopathological examination. In less complex cases a general practitioner may do this. Additional treatment may need to follow.
(f)In the circumstances of Ms Leonard’s re-growth, with the initial histopathology being clear of malignancy, a small punch biopsy, rather than a full excision would have been either the preferred approach or at least a fair choice if further investigation was warranted.
(g)Exposing a developing scar to sun may cause post-inflammatory hyperpigmentation.
(h)The orientation of the incision probably made very little difference to the wound healing.
Assoc Prof Shumack explained that if a general practitioner is uncertain about the diagnosis of a skin lesion, he or she may obtain a biopsy (either by extracting a part or removing the entire lesion); or may call a dermatologist to discuss the case and or arrange a rapid review of the lesion by the dermatologist. He went on to indicate that local ACT dermatologists are available to receive such calls. Dr Tonks expressed the view that such referrals involve a degree of clinical judgment.
Assoc Prof Shumack indicated that the double time for a melanoma is two to three months and for that reason the six weeks between the initial excision of Ms Leonard’s mole and her presentation with a re-growth was a ridiculously short period of time for any remnant malignant cells to multiply to the size of the re-growth. Dr Tonks explained that a recurrent growth or a new lesion may be indicative of a need for a biopsy, if there is any doubt about the diagnosis.
Assoc Prof Shumack opined that with the histopathology report of the initial excision being clear and in the absence of any evidence of malignancy, he would have recommended Ms Leonard return for a scar check in about three months. Dr Tonks indicated he could not give an opinion because he was not present to see the re-growth and was uncertain about the nature of the scarring.
Dr Tonks expressed concern about the second biopsy being described as rough and grey. He expected a normal scar to be smooth and red. However, Assoc Prof Shumack explained the specimen would have been effectively bleached as part of the mounting process before the observation was made and suspected the roughness was also a result of the mounting process.
Assoc Prof Shumack explained that if there is discolouration of a wound site on the lower leg within a relatively short period of time, it may be due to bruising or capillaries leaking red blood cells. That possibility is easily confirmed by using a dermatoscope and applying temporary pressure to the site to see if the site is momentarily blanched.
The two witnesses also provided considerable evidence about how the inflammation depicted in a photograph may be treated. That photograph and was taken by the occupational therapist in September 2015, well over a year after the excisions, and approximately three years before the hearing. At the hearing, Ms Leonard indicated that she had not had an episode of that nature since March 2018 when since she had changed the style of her basketball shoes. In those circumstances that evidence is of little assistance.
I found Assoc Prof Shumack’s evidence compelling and I accept the same. His explanations in relation to diagnosis and treatment options were clear and supported by logical reasoning. His evidence also demonstrated the complexity of the speciality of dermatology, and how particular features may not be appreciated by other medical practitioners. Dr Tonks’ evidence was equally compelling in relation to appropriate surgical treatments. His evidence in relation to diagnosis was often silent or consistent with that of Assoc Prof Shumack’s, and where it differed it did so in only a qualified way. Accordingly, where the above evidence differed between the two witnesses, I prefer the evidence of Assoc Prof Shumack.
Negligence
Pleadings
The negligence was particularised within the Statement of Claim as:
(a)Failure to properly diagnose the plaintiff’s skin condition;
(b)Failure to conduct safe or satisfactory excisions by making a horizontal rather than vertical cut to the ankle, which impeded healing;
(c)Performed an unnecessary wider re-excision of the mole;
(d)Performed unsafe suturing technique of the re-excised wound by using tension sutures to pull the wound closed;
(e)Exposing the plaintiff to a risk of injury that could have been avoided by reasonable care; (no evidence of causation)
(f)Performed the procedure in an unsafe manner resulting in infection;
(g)Failure to take any or any adequate precautions for the safety of the plaintiff;
(h)Failure to warn the plaintiff of the risks of injury or possible complications;
(i)Failure to warn the plaintiff that the mole may grow back after the initial procedure of 9 December 2013;
(j)Failure to provide the plaintiff with adequate post-procedure instructions;
(k)Failure to refer the plaintiff to a specialist; (causation)
(l)Performed a procedure which was too complicated to be done in a GP’s office.
Consideration
Based on the factual findings described about, I find that Dr Kulatilake did not exercise reasonable care and skill when providing professional advice and treatment to Ms Leonard. That breach related to the re-excision.
In relation to the allegation of negligence above at (g), Ms Leonard provided the additional particulars ‘Not exposing the Plaintiff to an unnecessary procedure’. I am of the view that that allegation along with the allegation above at (h) together squarely asserted the failure of Dr Kulatilake when carrying out an unnecessary procedure which carried known risks and her failure to adequately inform Ms Leonard about the spectrum of treatment options and the advantages and risks of each, in order to allow Ms Leonard to make an informed decision about how to proceed.
Based on the evidence and findings I have described above, it is clear that at the time of the re-excision, a reasonably competent general practitioner would have understood that the patient had a condition that the practitioner was not familiar with and that they should either wait for the clinical symptoms to become clearer or seek additional expertise. The reasonably competent general practitioner would have understood that they did not have an understanding about whether any concern they were entertaining was justified. They would have understood that their expressed concern and recommendation would be decisive in guiding the decision of the patient in relation to future treatment. They would have understood that there were additional resources that could be utilised. They could speak with another practitioner better qualified in the field, for example a dermatologist and or they could refer the patient to a specialist. While re-excising the growth was an option immediately available to the general practitioner, doing so without a clear understanding that it was necessary or appropriate would not be consistent with principle of doing no harm. Further, while the growth may have appeared within weeks, it had not further developed between the two consultations, and there was therefore no basis to apprehend any sense of urgency.
Accordingly, reasonable care and skill would have involved Dr Kulatilake recognising the limit of her expertise and the gap in her knowledge about the likelihood of the growth being malignant or pre-cancerous. Reasonable care and skill would have also involved her seeking specialist guidance before recommending or conducting the re-excision, which may be totally unnecessary, and which carried inherent and known risks of infection and scarring. Dr Kulatilake did not seek that guidance.
Further, reasonable care and skill would have involved communicating to Ms Leonard the scale and detail of Dr Kulatilake’s uncertainty about the possible diagnosis and providing her with meaningful information that would allow her to balance the risks of waiting and monitoring the site for a further period of time with the risks of undergoing the re-excision. Dr Kulatilake did not provide information in that detail. This obligation should be understood in the context of Ms Leonard originally requesting the mole to be removed because she was concerned about her appearance, the re-excision involving a much larger incision, and the increased possibility of infection and or scarring due to the size, location and repeated nature of the re-excision. Dr Kulatilake ought reasonably to have known that Ms Leonard would be likely to attach significance to the ultimate appearance of the site. Therefore the possibility of infection and scarring would be expected to effect whether or not Ms Leonard chose to undergo the procedure. Briefly mention infection and scarring as possible complications was not sufficient.
It is clear that the re-excision was a necessary condition of the infection and associated scarring, and consequential damage experienced by Ms Leonard. Additionally, infection and scarring where known risks and therefore foreseeable consequences of the re-excision. In circumstances where the re-excision was simply not necessary and Dr Kulatilake would have learned this if she had recognised the limit of her knowledge and sought guidance from a more qualified practitioner, it is appropriate for her liability to extend to the harm so caused.
Further, I accept the evidence of Ms Leonard that had she been warned about the potential scale of infection and impact upon her functioning she would not have agreed to the re-excision. I infer that had Dr Kulatilake disclosed frankly the scale of her uncertainty about the possibility of the re-growth being malignant or pre-cancerous, the resultant risk to the appearance of the site by a re-excision and the option to simply monitor the site for a further period of time and or the option of Dr Kulatilake seeking guidance from a specialist, then Ms Leonard would not have agreed to the re-excision. In circumstances where this information was not shared with Ms Leonard, and it impacted directly on her ability to balance the options available to her, it is appropriate for the scope of Dr Kulatilake’s liability to extend to the harm caused.
For completeness I note that there was insufficient evidence for me to make findings that Dr Kulatilake did not exercise reasonable care and skill for the allegations particularised at subparagraphs 4(a), (b), (c), (d), (f), (i), (j) and (l). Similarly, there was insufficient evidence for me to be satisfied about causation in relation to the allegations particularised at subparagraphs 4(e) and (k) (as further particularised by Ms Leonard).
Assessment of damages
Ms Leonard has claimed significant damages. My assessment is much less.
General Damages
Ms Leonard is a 55 year old employed woman. As a consequence of the procedure, she suffered cellulitis that was extremely painful. She was admitted to hospital for three days and was administered intravenous antibiotics. She was also on pain medication for four weeks. She could not weight bear on her foot or drive for weeks, and at times was reduced to crawling around her home. She attended numerous medical appointments in the weeks following being released from hospital.
Prior to the injury, Ms Leonard refereed approximately 10 amateur basketball games each week. She had been engaged in that sport for 30 years. Immediately after the injury she was not able to participate in that activity. When returning to that sport, she suffered episodes of inflamed skin proximate to the site of the re-excision and was required to reduce the number of games she refereed. She consequently substituted part of her role as a referee with referee coaching instead. She now referees five to eight games a week. In summary, Ms Leonard experienced an initial pause in her refereeing, with an ultimate return to the role at a slightly lower frequency. She has suffered a reduction in the enjoyment of life by being less able to participate in basketball as a referee. In assessing damages I take into account the possibility that Ms Leonard’s ongoing participation in basketball may have been reduced for a range of reasons independent of the injury.
The last episode of inflammation was in March 2018, before Ms Leonard changed the style of her basketball shoes. There is a degree of uncertainty about if, when and how often any inflammation may occur in the future.
Due to the injury Ms Leonard was, for periods of time, initially inactive and then less active than she was prior to the injury. She consequently put on weight and became moody, frustrated and depressed.
Ms Leonard is left with a moderate size scar on her right ankle, a location that would be visible to others when she wears open shoes. She is now careful with her choice of footwear and is self-conscious about others seeing the scar. She is not otherwise impaired and has, save for the modest reduction in basketball refereeing, returned to pre-injury levels of activity.
I was not referred to any decision that may provide guidance in relation to this assessment.
I assess general damages of $35,000, with three quarters ($26,250) attributable to the past, with interest on the past component of $2,625, (calculation: $26,250 x 5 years x 2%).
Past wage and superannuation loss
The evidence is that Ms Leonard is not out of pocket for any time taken off work due to the injury. (This includes the flex-time she consumed when returning to work part-time, and I note that any claim for that component was abandoned during the hearing). I accept that her consumption of 24 days personal leave has, and possibly will in the future, limit her opportunity to take personal leave, and may potentially result in unpaid leave in the future.
It is difficult to quantify this loss of opportunity due to the uncertainty involved, and because there is no evidence about Ms Leonard’s income or future career or retirement intentions. Notwithstanding that deficiency it would be appropriate to make provision for a nominal amount of damages. I do so in the amount of $2,000. Since this component predominately accounts for future losses of opportunity, I make no provision for interest.
Past out of pocket expenses
While there is a claim for past out of pocket expenses, there is simply no evidence of what such expenses may have been. Accordingly, I assess those damages as nil.
Future out of pocket expenses
Ms Leonard made submissions in relation to this head of damage based upon figures for services costed within the occupational therapy report prepared by Ms Jasmine Price. Those services were costed on the basis that they may possibly be required in the future, without any clear indication that they would be required. Additionally, three years has passed since that assessment and there was no evidence that those services have been provided. In those circumstances I am not satisfied that there is a basis to find that the relevant services are likely to be required.
Evidence was also received from Assoc Prof Shumack and Dr Tonks. While there was some suggestion that some future treatment may be required, those suggestions were based only on the photograph taken during the above occupational therapy assessment. Further, the cost of that treatment was not put before the court and Ms Leonard’s evidence was that she had not had a further episode of inflammation since changing her shoes in March 2018. Similarly I cannot be satisfied that there is a basis to find that such treatment is likely to be required.
Accordingly, I assess these damages as nil.
Past unpaid domestic assistance
There is evidence, which I accept, that for a period of four weeks before returning to work and approximately two weeks after returning to work Ms Leonard received additional domestic assistance from her husband. During the same period, her husband also assumed a greater share of care responsibilities for her grandchildren and drove Ms Leonard to and from work and medical appointments. I will provide for 2.5 hours a day for the first four weeks, and then one hour a day for the subsequent two weeks. I accept that $35 per hour is a reasonable rate as submitted on behalf of Ms Leonard. Accordingly I assess these damages at $2,940 ($35 x [(2.5 hours x 7 days x 4 weeks) + (1 hour x 7 days x 2 weeks)]).
Future unpaid domestic assistance
There is a claim for future unpaid domestic assistance, but there is simply no evidence to support that claim. Accordingly, I assess those damages as nil.
Summary
Therefore my assessment of damages is:
general damages $35,000
interest on general damages $2,625
past wage and superannuation loss $2,000
past unpaid domestic assistance $2,940
Total$42,565
Orders
I make the following orders:
1. Judgment be entered for the plaintiff in the amount of $42,565.
2. The defendant pays the plaintiff’s costs of the proceedings.
3. Order 2 does not take effect during the period of 14 days after the making of these orders, and continues not to take effect thereafter if a party notifies the associate of Magistrate Theakston and the other party within that period in writing that they wish to be heard in relation to a different order as to costs.
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Priyanka Koci Date: 21 March 2019 |
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