Mazza v Webb
[2011] QSC 163
•16 June 2011
SUPREME COURT OF QUEENSLAND
CITATION:
Mazza v Webb [2011] QSC 163
PARTIES:
RAQUEL JOSEPHINE MAZZA
(Plaintiff)v
IAN WEBB
(Defendant)FILE NO/S:
BS 9170 of 2008
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
16 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
3-6 May 2011
JUDGE:
McMurdo J
ORDER:
Judgment for the plaintiff against the defendant for $81,373.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – GENERAL PRINCIPLES – where the plaintiff underwent an endoscopy conducted by the defendant – where the defendant failed to diagnose a small bowel carcinoma – where the defendant’s report to the general practitioner was deficient and misleading – whether the practice of ‘open access’ endoscopy is competent professional practice – whether the defendant’s report to the general practitioner was negligent
CATCHWORDS:
Civil Liability Act 2003 (Qld), s 22
Civil Liability Regulation 2003 (Qld)
Rogers v Whitaker (1992) 175 CLR 479, applied
Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital Board [1985] AC 871, applied
COUNSEL:
J Griffin QC with I Klevansky for the plaintiff
P Freeburn SC for the defendant
SOLICITORS:
Jonathan C Whiting & Associates for the plaintiff
TressCox Lawyers for the defendant
On 13 February 2004, when the plaintiff was then aged 25, she underwent an endoscopy conducted by the defendant, Dr Webb. She had been referred for this procedure to the Eastern Endoscopy Centre at Birkdale by her general practitioner, Dr Fitzsimon. Dr Webb worked there one day a week, otherwise practising in Caloundra.
At the conclusion of the procedure, Dr Webb wrote to Dr Fitzsimon, reporting on what he had seen. He wrote that the pharynx, oesophagus and stomach appeared to be normal, but the “duodenum still appears abnormal consistent with ongoing villous atrophy”. He advised that small bowel and entral biopsies had been taken and sent to a laboratory. Against the word “summary”, he wrote “persisting villous atrophy”.
Villous atrophy was an indication that the plaintiff had not been adhering to the gluten free diet which, as someone with Coeliac disease, she was required to do. Had that been the only thing causing her then symptoms, her health could have been restored within a matter of months by resuming a proper diet.
Unfortunately, her then symptoms of vomiting, abdominal pain, diarrhoea and weight loss, were for the most part not caused by her uncontrolled Coeliac disease and its resultant villous atrophy within the duodenum. Instead, they were caused by a then undiagnosed cancer, more precisely a small bowel carcinoma. This was not discovered until another endoscopy was performed, this time by Dr Andrew Bryant, in May 2005. In the interim period, the plaintiff became pregnant resulting in the successful delivery of a child in January 2005, about one month prior to the full term of her pregnancy. But throughout those 15 months she remained very sick, continuing to suffer from much the same symptoms and by the time of the second endoscopy, her weight had fallen to about 33 kilograms.
After the tumour was discovered, it was promptly removed following which the plaintiff underwent chemotherapy for the balance of 2005. At this time, her treating doctors told her that she would be unlikely to survive the effects of the cancer. But year by year, her prognosis has improved. She has now returned to part time work.
She brought these proceedings, claiming damages against both Dr Fitzsimon and Dr Webb, for the effects of the tumour remaining undiscovered until May 2005. The claim against Dr Fitzsimon did not proceed to a trial and it is agreed that, whatever was its outcome, it is of no consequence for the case which was ultimately prosecuted against Dr Webb.
In essence, there are two parts to that case. First, it is alleged that Dr Webb should have conducted a more extensive endoscopy, meaning that he should have passed the scope further into the patient and as far as Dr Bryant did in 2005. Just precisely where the tumour was located by Dr Bryant is an issue here. But ultimately it does not matter for the plaintiff’s first argument, which is that (as Dr Bryant’s procedure proved) the endoscope could have been directed far enough into the patient, without undue difficulty, discomfort or risk to her, to make the tumour apparent.
Secondly, the plaintiff complains about what was written, or more importantly not written, by Dr Webb to Dr Fitzsimon. It is alleged that Dr Webb should have advised that he had not found a satisfactory explanation for her symptoms and that some further investigation was required. The plaintiff’s case is that in that event she would have been likely to have undertaken some further procedure which would have then revealed the tumour.
Before going to those arguments and the evidence relevant to them, it is necessary to say something of the events prior to this procedure. The plaintiff was born in 1978 in Beirut. She and her family settled in Australia three years later. She completed a grade 12 education in Queensland before starting work in child care. She was successful in that but moved to work in a fashion store in Brisbane in 2000. She married in 2003.
She was diagnosed with Coeliac disease when she was about 16 or 17. At first this was successfully treated by adherence to a proper diet. But gradually she began to feel that the diet was unnecessary and doubted whether she had the disease.
Dr Fitzsimon first saw the plaintiff in 2002. She formed the opinion, correctly or otherwise, that the plaintiff suffered from psychological problems, and in particular was angry, emotional, obsessive compulsive and prone to depression. The plaintiff was seen by Dr Fitzsimon many times and was prescribed with an antidepressant. The first record by Dr Fitzsimon of gastrointestinal symptoms was in April 2003, when the plaintiff complained of abdominal discomfort, diarrhoea and nausea all suffered during the preceding four days.
At the same time the plaintiff, who was still working full time, was also consulting general practitioners near her work in the Brisbane CBD. Those doctors noted that blood tests ordered by them showed anaemia, iron deficiency and protein deficiency. One of them, Dr Tam, on 27 January 2004 referred the plaintiff to the Department of Emergency Medicine at the Royal Brisbane Hospital, requesting that the plaintiff have an abdominal and pelvic ultrasound and an “urgent endoscopy”.
At the Royal Brisbane Hospital on that day, blood investigations and an abdominal x‑ray showed “nil of note” and the plaintiff was told she needed an endoscopy. She was referred back to her general practitioner to organise that procedure.
On 29 January 2004, the plaintiff saw another of the GPs in the CBD and was still complaining of severe stomach cramps, vomiting and loss of weight. She was told that she needed an urgent endoscopy and gastroenterology assessment and she was given a reference to a particular specialist.
But at about the same time, Dr Fitzsimon was phoned by the plaintiff’s mother, Mrs Azar, concerned about her daughter’s health and in particular her symptoms of vomiting, abdominal pain and weight loss. Mrs Azar told Dr Fitzsimon that the plaintiff could not afford to pay for a private endoscopy and asked for her assistance. Dr Fitzsimon then rang the Eastern Endoscopy Centre, who agreed to bulk bill the specialist’s fee for an endoscopy and to reduce the so-called facility fee.
The plaintiff continued to suffer from these symptoms and saw Dr Fitzsimon again on 9 February 2004. Dr Fitzsimon completed a form requesting an upper endoscopy. The form was that routinely used for referrals to the Eastern Endoscopy Centre. It was headed “Gastroenterology Request Form” and was handed to the plaintiff for her to take it to the specialist.
The form provided for the service required of the specialist to be identified as one or more of:
“Consultation
Upper endoscopy
Colonoscopy.”
Dr Fitzsimon marked the square next to “Upper endoscopy” and not the others. Accordingly, as would be understood by general practitioners and gastroenterologists, this was a request for what the medical profession calls an “open access” endoscopy. That meant that no consultation with the specialist was requested. The service was to be limited to that of the endoscopy itself. By necessary implication, that required a communication by the specialist, at least to the general practitioner, of what this investigative procedure had revealed. According to Dr Webb, it required no more than a statement of what he had seen through the endoscope, and it was unnecessary to offer any comment on what that meant, and more particularly, whether what he had seen was a satisfactory explanation for the patient’s symptoms.
On this same form, provision was made for the general practitioner to insert information under the heading “Clinical Notes”. Dr Fitzsimon inserted the following:
“Known coeliac after endoscopy 7 years ago, Over 4 Kg weight loss, vomiting and abdo pain and some diarrhoea for many weaks (sic).”
The plaintiff’s Coeliac disease may have been diagnosed a little earlier than was there indicated, but nothing comes from that. The symptoms were accurately although shortly summarised there by Dr Fitzsimon. The duration of those symptoms may have been understated. Still it ought to have been clear to Dr Webb that whilst the plaintiff’s Coeliac disease had long been diagnosed, her symptoms were relatively recent.
The form contained a number of directions to the patient, about preparing for the procedure, transport and other things. It contained an instruction to “notify the Doctor of any allergies or other medical problems”. But otherwise it said nothing about what would or would not occur between the patient and the specialist.
The plaintiff was also provided with a document headed “Information Concerning Panendoscopy”. This contained information about the procedure itself, what should be done by the patient in preparation for it and what would happen afterwards. It explained that “[e]ndoscopy is a procedure that enables the Doctor to see inside your upper gastrointestinal tract – your oesophagus, stomach and duodenum”, and whilst the patient was under an anaesthetic, the doctor would pass the endoscope through her mouth and down her throat, with the examination taking about 20 minutes. The form told the patient that she would remain the clinic for about 30 to 40 minutes until the main effects of any medication wore off. She was also informed that she “may not remember any discussion with the doctor after the procedure, so it is important you arrange a follow-up appointment with your GP to discuss the results”.
At the Centre the plaintiff signed another form provided by the specialist, which was a consent form for the procedure. It contained the patient’s agreement that the nature of the procedure had been fully explained.
The plaintiff has a recollection of speaking to a receptionist at the Centre shortly prior to the procedure. She says that she cannot recall speaking to Dr Webb. He says that, according to his usual practice, he would have spoken to her briefly immediately prior to the procedure in this way:
“I introduced myself; a brief hello; asked her why she’s here, as in what symptoms have brought her to have an endoscope; I’ve asked her if there’s any questions and then I would’ve asked her to sign the consent form.”
He said that this conversation usually takes “two to three minutes”. It is unnecessary to decide whether there was such a conversation for this particular procedure. If it occurred, it is unlikely to have added to or qualified the information which Dr Fitzsimon had provided in the request form. Upon either version, there was nothing in the nature of a consultation.
Dr Webb passed the scope into and through the oesophagus and then into and through the stomach. The scope was then passed into the duodenum. There are four parts to the duodenum, which are numbered in the sequence in which each is encountered in the “downstream” direction, i.e. moving down from the stomach. At the far end of the fourth part (‘D4’) is the junction between the duodenum and the jejunum.
As already noted, the location of this tumour is controversial. According to some evidence, it was within the third part of the duodenum (‘D3’) and D4. According to other evidence, it was closer to the junction of the duodenum and the jejunum. Then there is yet other evidence that it was below that junction, i.e. yet further downstream.
As that controversy was developed in the course of the evidence, it resulted in some shifting of each party’s case. Originally, the plaintiff’s case was that the tumour was in D3 and D4 and that it was not seen by Dr Webb because he passed the endoscope only as far as the second part of the duodenum (‘D2’). The defendant’s case in response to that was that the usual practice is to pass the endoscope only as far as D2 and that, having regard to what was said to be the potential risk, or at least discomfort, to a patient by going beyond D2, Dr Webb was obliged to go no further. But in the course of the trial, the plaintiff was allowed to amend her case to allege that the endoscope should have been passed as far as it could have been, without undue risk or discomfort, which was to whatever point Dr Andrew Bryant passed the endoscope in the procedure he performed in 2005. This amendment was to allow for the possibility of a finding that the tumour was further downstream than D2 or even beyond the duodenum.
Then when Dr Webb gave evidence, he claimed that in fact he recalled going beyond D2 in this particular case. He said that there was some difficulty in knowing precisely where the scope had reached, at least once it had passed beyond D2, but that he believed that there was about a 70% chance that it had passed at least to D3 and a 10% chance that it had passed to D4. That evidence, in my view, was plainly inconsistent with his pleaded case. In particular, paragraph 11(d) of the Defence pleaded that:
“… [T]he defendant’s conduct, as an endoscopist in performing the requested endoscopy without proceeding to examine the third and fourth parts of the duodenum and the duodeno-jejunal junction was reasonable conduct that was widely accepted by peer professional opinion by a number of respected practitioners in the field as competent professional practice (s 22(1) of the Civil Liability Act 2003);”
(emphasis added)
Similarly, paragraph 11(ec) pleaded this:
“… [S]ays further that the carcinoma was resected at the proximal jejunum, and therefore would not have been able to be detected by the defendant’s endoscopy on 13 February 2004, even if the defendant had proceeded to the third and fourth parts of the duodenum, and the duodeno-jejunal junction;”
(emphasis added)
Dr Webb was unable to explain that inconsistency. I am left with the impression that at the time he regarded it as sufficient to pass the endoscope only as far as D2. That is likely to have been his view because, as I find from the evidence of Dr Sandford, a gastroenterologist called in the defendant’s case, it is the usual practice of gastroenterologists conducting this procedure to go only as far as D2. Thus more probably than not Dr Webb did not proceed in this case beyond D2.
Dr Sandford said that the usual practice of gastroenterologists is to pass the endoscope only as far as D2 unless there were “clinical reasons”. He said that this was as he was trained in the early 1980s. He said that “[f]urther passage of the scope beyond that can be done but is associated with increased risk to the patient, increased discomfort to the patient and the yield from – of finding pathology beyond the second part of the duodenum does not warrant going past the second part of the duodenum”. Since 1986 he has had some role in the training of gastroenterologists and “our standard training … has been to pass the scope to the second part of the duodenum unless there are particular symptoms or signs which warrant further passage of the scope beyond that point”. He said that “[t]he scopes are not specifically designed to go past that. They are flexible scopes which enable readily to pass the scope around a very tight bend between the first and second parts of the duodenum. That flexibility results in difficulty passing it beyond the second part because the scope then tends to loop in the stomach and apply pressure to the wall of the stomach if further attempts to pass the scope beyond the second part of the duodenum are made. It can be overcome by sucking out air, straightening the scope and sometimes passing an over tube over the scope to keep it straight which then enables passage of the scope deeper into the duodenum or small intestine”.
According to each gastroenterologist who gave evidence, the extent to which the endoscope can be passed varies from patient to patient. With some patients it is impossible to go beyond D2. With other patients the passage of the scope through the entire duodenum and into the jejunum is possible, even with the type of endoscope usually employed and without significant risk or discomfort to the patient. The gastroenterologist called in the plaintiff’s case was Dr Hourigan. He said that it is a matter of, in effect, feeling one’s way to see how far the endoscope can be passed into a particular patient and that where, as in this case, the endoscope can be passed, at least to the end of the duodenum, this is a relatively simple procedure and one which takes only an extra few minutes in going beyond D2. His evidence is strongly contradicted in some respects, but not in that one. Of course, the position varies from patient to patient, but what is now known is that in the plaintiff’s case, the endoscope could have been passed at least to where this tumour was, because that is what Dr Bryant did, using a standard endoscope. Dr Bryant said that he had been able to pass the scope that far without the plaintiff’s health being placed at risk and without the application of any unusual force. But he also said that in the vast majority of cases, the usual practice was to pass the scope only to D2.
On the evidence of Dr Sandford and Dr Bryant, I find that the usual practice is to proceed only as far as D2, unless an attempt to go further is warranted by “particular symptoms or signs”. I find that this was then widely accepted by peer professional opinion by a significant number of respected practitioners in this field as a competent professional practice, as described in s 22(1) of the Civil Liability Act 2003 (Qld). Consequently, Dr Webb was not negligent in so far as he acted according to that practice, unless I were to find that the peer professional opinion was irrational or contrary to a written law: s 22(2). No inconsistency with a written law arises here. As to the rationality of that peer opinion, it is the subject of strong criticism by Dr Hourigan, as part of his opposition to the practice of open access endoscopy. He argues that this is an abdication of professional responsibility by the gastroenterologist, because in his view it is essential that this procedure be undertaken, not only by a specialist, but with the benefit of a consultation. But again, the practice of open access endoscopy is now well-established and has wide acceptance by at least a significant number of respected practitioners in the field as competent professional practice, and I was not asked to find otherwise. Nor was I asked to find that the practice of normally proceeding no further than D2 is one which is irrational. Rather, the plaintiff appears to accept the practice, but argues that this was an exceptional case where the symptoms and signs required the specialist to proceed further.
Importantly, the plaintiff’s condition as it appeared to Dr Bryant was not identical to that which was presented to Dr Webb. Her weight loss, according to the form which Dr Fitzsimon completed, had been about 4 kilograms. By the time of Dr Bryant’s procedure, the plaintiff had lost about another 12 kilograms. And Dr Bryant said that the main reason he tried to pass the scope further than he would have done in a “routine endoscopy” was that when he reached the stomach, he found a large volume of bile stained fluid, suggesting that downstream from the stomach there was something that was obstructing the flow of fluid. The same had not been encountered by Dr Webb.
According to Dr Hourigan, the need to pass the scope as far as possible was nevertheless indicated in February 2004. Even without the benefit of a consultation, Dr Webb was presented with a patient who had obviously been quite sick for some weeks and who was experiencing symptoms, some of which, said Dr Hourigan, could not have been explained by Coeliac Disease, whether treated or untreated. In particular, there were the symptoms of vomiting and abdominal pain. In the context of a weight loss even of 4 kilograms, Dr Hourigan described the symptoms of the plaintiff, as presented to Dr Webb, as “alerting and alarming”.
Dr Sandford agreed that vomiting and abdominal pain were not symptoms which were typical of Coeliac Disease. He agreed that the form completed by Dr Fitzsimon would have suggested to the reader that those symptoms were “quite reasonably new”. And he said that in this case the specialist would have to “consider other possibilities”, i.e. other than untreated Coeliac Disease. He agreed that in the differential diagnosis of a patient presenting with these symptoms, a small bowel malignancy would be something which a gastroenterologist would consider as a possibility. Nevertheless, he was not critical of Dr Webb’s procedure. Notwithstanding these unexplained symptoms of vomiting and abdominal pain, Dr Sandford said that he would not have considered it necessary to pass the endoscope beyond D2: instead the reasonable course could have been to leave a more extensive endoscopy or some other investigation for a later time if, after adherence to a gluten free diet, the patient’s symptoms persisted. Dr Sandford wrote that “[a]s a first line procedure … I think that Dr Webb’s decision to only pass the endoscope as far as the 2nd part of the duodenum was quite reasonable”, because that enabled the specialist to evaluate whether there was persisting villous atrophy and to exclude the possibility of some other causes of upper gastrointestinal pain, such as peptic ulcer disease. Dr Sandford emphasised that without the benefit of hindsight from the 2005 endoscopy, Dr Webb was not to have known that a tumour existed and could be found by passing the scope as far as Dr Bryant did. The symptoms of vomiting and diarrhoea had many potential causes and passing the scope as far as the jejunum would not have ensured that the actual cause was identified. For example, if the cause was a tumour but one which was located further down the small bowel from the proximal jejunum, passing the scope as far as Dr Bryant did would not have located it. Dr Sandford said that the appropriate procedure if, after her initial endoscopy, these symptoms persisted, would have been to proceed to a small bowel x-ray or an enteroscopy, where special endoscopes are passed further down into the intestine.
Dr Sandford gave examples of clinical reasons why the specialist would try to pass the scope further than D2. In particular, he said that if a patient presented with gastrointestinal bleeding or vomiting of blood and no source of bleeding was identified, “you would try and go a bit further because sometimes there are lesions in the second part or beyond the second part of the duodenum which may be diagnosed”.
At one point in Dr Webb’s evidence, he said that vomiting and abdominal pain are symptoms of untreated Coeliac Disease.[1] I am unable to accept that evidence, which is contrary to the opinions of Dr Hourigan and Dr Sandford. Not only is each of them an independent witness, but each is considerably more experienced. At another point in his evidence, Dr Webb said that abdominal pain and vomiting were “atypical for coeliac disease”.[2] A general practitioner called in the defendant’s case, Dr Kable, also believed that those symptoms could be the result of untreated Coeliac Disease. Again I do not accept that evidence, preferring the opinions of Dr Hourigan and Dr Sandford. Assuming that Dr Webb believed that all of the plaintiff’s symptoms could be explained by untreated Coeliac Disease, this would make it yet more likely that he did not proceed further than the point where he found villous atrophy. His evidence was that he was also concerned about a possible lymphoma, which he said was a common complication of Coeliac Disease, and for that reason he took more biopsies than he would otherwise have done in the normal procedure.
[1] T 3-36 and 3-43.
[2] T 3-37 and 3-51.
The respective approaches of Dr Hourigan and Dr Sandford to a case such as this might be described in this way. Dr Hourigan would use the opportunity of the procedure then being undertaken to further explore, if possible, a possible cause of all of the patient’s symptoms. Dr Sandford would regard the situation as one in which the risk of some undiagnosed condition could be met by some other and probably more productive investigation, instead of then trying to pass the endoscope further. Of course the question of whether that approach is consistent with the exercise of reasonable care and skill is one to be answered by the circumstances as they should have appeared to Dr Webb, without the benefit of hindsight. In particular, I accept that Dr Webb was not presented with a set of symptoms which strongly indicated the presence of a tumour.
The problem with the employment of Dr Sandford’s approach, if that is a fair description of what Dr Webb did, was that here the treating doctor (Dr Fitzsimon) was told nothing of the possible requirement for a further investigation, in circumstances where the treating doctor may well have concluded from Dr Webb’s report that nothing remained to be investigated. The report gave no indication that some of the plaintiff’s symptoms were not explained by untreated Coeliac disease. Although, according to the evidence of Dr Sandford and Dr Hourigan, a gastroenterologist would or should have understood that, it far from appears that a general practitioner would have the same knowledge of the subject. The evidence of Dr Kable indicates that it would not usually be understood by a general practitioner. Indeed the report indicated that all of her symptoms were explained by villous atrophy.
The plaintiff saw Dr Fitzsimon three days after the endoscopy. Dr Fitzsimon then made this note:
“Anxiety
Very upset – endoscopy ok. Has had very unhappy first year of marriage with lots of communication problems. Long discussions re options re counselling …
Plan 1. Restore health – exercise, diet, relax
2. Have short break in Sydney.
c. then consider other options.”
Dr Fitzsimon did not give evidence. In the argument for Dr Webb, it was suggested that his report of the endoscopy was not available to Dr Fitzsimon on this occasion. But it was dated 13 February (the date of the procedure) and although a weekend intervened, it was probable that Dr Fitzsimon had received it by 16 February. The plaintiff’s evidence was that Dr Fitzsimon said words to the effect: “endoscopy’s okay however he did take some biopsies”. She said that Dr Fitzsimon, “had it up on the computer but she went through it really quickly” and that Dr Fitzsimon gave no particular advice in consequence of the endoscopy. I accept that evidence. It is more likely than not that Dr Fitzsimon then had Dr Webb’s report. It is unlikely that without that report, Dr Fitzsimon would have said anything to the effect that the endoscopy was “okay”. And had that been instead the plaintiff’s comment to Dr Fitzsimon about her experience of the endoscopy, it would have been a curious thing for Dr Fitzsimon to have noted, because it would have had no relevance. I infer that Dr Fitzsimon believed, having read the report, that no further investigation was warranted. That is why there is no note of her suggesting the need for any further investigation.
The plaintiff’s evidence was that had she been told at this stage that it was necessary to undergo some further tests to see whether it was non-compliance with the gluten free diet that was causing her symptoms, she would have undergone that further investigation. Her evidence in that respect was unchallenged. I accept it.
Should Dr Webb have done more, either in the procedure or in his report? Undoubtedly Dr Webb owed a duty of care to the plaintiff. The duty which the law imposes on a medical practitioner is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”.[3] In Rogers v Whitaker,[4] it was said that this duty “extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case”. But the content of the duty here, it must be accepted, was affected by the limits of the task which Dr Webb had been asked to perform. That was an investigatory task. He was not asked to treat the plaintiff. He was obliged to exercise the reasonable care and skill to be expected of a gastroenterologist experienced in this procedure in undertaking this investigation. In particular, he was bound to act with reasonable care and skill in deciding whether the circumstances, as they were presented to him, warranted proceeding further than in the usual case. That required him to consider the plaintiff’s symptoms, and to decide whether they were satisfactorily explained by what he discovered by passing the scope as far as D2. If he truly believed that each of these symptoms could be explained by untreated Coeliac disease, then that was a misunderstanding which was serious enough to involve a departure from a reasonable standard of skill and care. I am by no means sure that that was his belief. I think it is at least as likely that he saw his role as being simply to proceed to the D2, and then to record what he had seen.
[3]Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital Board [1985] AC 871 per Lord Diplock at 893, cited with approval in Rogers v Whitaker (1992) 175 CLR 479 at 483.
[4]Ibid per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at 483.
The question then is whether a reasonably competent specialist must have proceeded further than D2, if possible. The fact that, had this been attempted in this instance, a more extensive investigation could have been conducted without difficulty or risk and with but a few minutes of extra work, might indicate that this should have been done, in circumstances where serious symptoms were not explained by what had been found by going as far as D2. On the other hand, there is force in Dr Sandford’s point that there were many possible causes of these symptoms and that there was no particular likelihood that the actual cause would have been identified by attempting to pass the scope further.
I am not persuaded that Dr Sandford’s opinion upon this is to be rejected. But if Dr Webb need not have investigated further, it was incumbent upon him to reveal the limitations of his investigation, lest the treating doctor or the patient thought that no further investigative procedure could be warranted. Dr Sandford’s evidence was that “as a first line procedure … I think that Dr Webb’s decision to only pass the endoscope as far as the 2nd part of the duodenum was quite reasonable”. But he agreed that Dr Webb’s report would not have “communicate[d] to anyone that it was a first line procedure … from the point of view of saying that further investigations were necessary at that stage”. Further, Dr Sandford agreed that “normally the report does list or state the extent of the procedure, and that was not done in this case”. And critically, he agreed that there was a deficiency in the report in that it had given “the impression that the only problem was Coeliac disease and that … the endoscopy had in fact confirmed that”.[5]
[5]T 2-63.
There was a foreseeable risk that a serious condition, such as a tumour, existed in the case of this patient with the symptoms which were recorded, and that this would go untreated if undetected. Notwithstanding the “open access” basis for the procedure, Dr Webb was obliged to exercise reasonable skill and care to avoid that risk. If he was not to pass the endoscope as far as possible, to try to identify the cause of all of her symptoms, reasonable care demanded that he at least alert the treating doctor and the patient that his investigation had been limited and that it had not yielded a satisfactory explanation for her symptoms. He failed to do that. Instead he wrote a report which represented that he had found such an explanation.
Although he was not the doctor responsible for the plaintiff’s treatment, it must be remembered that he was the specialist. As Dr Sandford said, gastroenterologists “are dealing more commonly with these relatively uncommon conditions than GPs and we see a wider spectrum of the complications resulting from those diseases and therefore are far more aware of them as possibilities”. The specialist should not have left it to the GP to assess whether the symptoms had been satisfactorily explained by the presence of villous atrophy. And as I have found, in this case the report was not only uninformative but also misleading.
During the trial, counsel for the defendant objected to the inclusion in the plaintiff’s case of the argument which I have upheld, namely that Dr Webb’s report was negligent for effectively representing that he had found the explanation for the plaintiff’s symptoms. It was submitted that such a case was not pleaded. Yet when Dr Hourigan gave oral evidence directly supporting such a case, there was no objection to it. Paragraph 17(f) of the statement of claim contains a particular of negligence which is in terms that Dr Webb failed to “fully and adequately report or advise the plaintiff and the general practitioner that further investigations and treatment were clearly and urgently indicated and needed in the case”. I am unable to see that the argument should not have been anticipated. If it was not anticipated, there was no prejudice to the defendant which was identified.
It is unnecessary then to determine precisely where this tumour was located. But should it become material, I think that it was more probably than not in the position noted by the surgeon who removed it. The gastroenterologist who conducted the endoscopy in 2005 reported that it was at the junction of D3 and D4. But when presented with the surgeon’s notes that the tumour was found in the jejunum, Dr Bryant said that the surgeon would have had a better idea of the location of the tumour and that it is more likely that the surgeon was correct in what he noted. The only witness who could give direct evidence of the location of the tumour by having seen it was this gastroenterologist. Although the surgeon was not called, it seems that his note of the location of the tumour should be given substantial weight. It was submitted for the plaintiff that I should rely upon the evidence of Dr Stewart, a haemato-oncologist, who referred to another part of the surgeon’s notes which, he said, indicated that the surgeon had removed D4. In Dr Stewart’s view this indicated that it was in D4 that the tumour was located. Nevertheless, the surgeon’s note was unambiguous in regarding that the tumour was in the proximal jejunum, and I so find.
The next question is whether Dr Webb’s negligence, by reporting as he did, was causative of the damage of which the plaintiff complains, which is from the tumour being undetected and untreated over the next 15 months. Had Dr Webb reported that only some of her symptoms could be explained by the villous atrophy, what would have happened? I have found that the plaintiff would have accepted advice, if given by her general practitioner, that she should undertake some further investigative procedure. But is it likely that this would have been the GP’s advice had Dr Webb given a proper report? Dr Fitzsimon thought that the plaintiff had substantial psychological problems. It is possible that she would have been dismissive of the plaintiff’s symptoms, and given much the same advice as she did give to the plaintiff. But that would have been a brave course for a general practitioner, faced with a report which said that the endoscopy had not found a satisfactory explanation for all of the patient’s symptoms and with a patient who was apparently very ill and wanting to know the cause of her illness. More probably than not, the plaintiff would have pressed Dr Fitzsimon for advice as to what other investigative procedures might reveal what was wrong with her. She certainly showed no disinclination to seek medical treatment. In those circumstances, it is probable that Dr Fitzsimon would have taken the prudent course of recommending some further investigatory procedure of the kind described by Dr Sandford. In that event, as I have found, the plaintiff would have accepted the advice. There seems to be no dispute that this would have revealed the tumour.
Ultimately then, I am satisfied that more probably than not, Dr Webb’s report, by what it said and what it did not say, was causative of the plaintiff not undergoing some further investigative procedure and of her tumour being undetected. The remaining questions concern the extent of that harm and what should be the compensation for it.
As the plaintiff’s case accepts, the surgery conducted in 2005 was much the same as that which would have been conducted in 2004. And the prognosis after the passage of some six years appears to be reasonably favourable. Undoubtedly the plaintiff is entitled to be compensated for what she suffered between the time when the tumour should have been removed and when it was removed. But upon her case, she should also be compensated upon the alleged basis that it took much longer to recover after the removal of the tumour than would have been the case had it been removed in 2004. For the defendant it is argued that this matter is not established so that her damages should be effectively limited to the effects of the cancer over a period of a year or so.
After February 2004, the plaintiff was next seen by Dr Fitzsimon on 28 June 2004, when the plaintiff (correctly) suspected she was pregnant. Her pregnancy was then confirmed on or about that day. But in the meantime she had seen four other GPs near her workplace. On one of those occasions there was a record of gastrointestinal symptoms when it was noted her “vomiting [had] settled but [her] diarrhoea persists”.
On 6 September 2004, Dr Fitzsimon saw the plaintiff and noted “vomiting and diarrhoea continues”. Dr Fitzsimon then wrote to the Royal Women’s Hospital, requesting a specialist assessment. She wrote:
“She is only 44.8kg and has lost weight through the pregnancy, (was 50kg before the pregnancy) with very constant diarrhoea, and sometimes vomiting. Although she eats fruit and vegies and no wheat that she knows of (as she has Coeliac disease), the gastrointestinal symptoms have been very disabling.”
On 15 November 2004, she was seen by Dr Fitzsimon who then noted “very poor maternal weight gain”. Her weight was then recorded at 46.7kg and it was noted that she was “still vomiting”. She was then about 27 weeks pregnant.
On 18 November 2004, Dr Fitzsimon noted “multiple problems – past history of eating disorder. Husband and R. deny that diet is inadequate. Vomiting still, and very nauseated.” She was given iron, vitamin B12 and folate injections and stemetil was prescribed for her vomiting. However, her vomiting persisted.
On 6 January 2005, Dr Fitzsimon wrote to the Royal Women’s Hospital as follows:
“I remain very concerned about Raquel, who has now only put on 0.7kg since the beginning of August. She vomits frequently. … She is only just coping!”
The plaintiff’s son was born on 22 January 2005. She was discharged from the hospital three days later.
Her health continued to deteriorate. On 11 April 2005, Dr Fitzsimon wrote to the Royal Brisbane Hospital as follows:
“Raquel is now 38kg. I am desperately worried about her (still). She has severe epigastric pain and feels a ‘twitching’ in her stomach. She says she is hungry, but can’t eat. … I think she needs admission and assessment again, both physically and psychologically.”
On 6 May 2005, Dr Fitzsimon recorded a telephone call from the plaintiff and her mother. She noted that the plaintiff was still taking antidepressants and was vomiting. Dr Fitzsimon advised her to return to hospital.
On 9 May 2005, after seeing the plaintiff, Dr Fitzsimon wrote to the Eating Disorder Unit at Royal Brisbane Hospital, saying that the plaintiff then weighed about 30kg. Consequently, she was admitted to that hospital on 11 May 2005. After five days of psychiatric assessment, very fortunately she was reviewed by the gastroenterology Registrar who recommended and organised an upper endoscopy. It was that procedure that revealed the tumour. It was removed on 27 May 2005. She was discharged on 7 June 2005. Within a few weeks her weight was recorded as improving to 39kg with improvements in her general condition and energy levels. She commenced chemotherapy soon after then, which she underwent until the end of 2005.
There is no contest as to the fact of her continuing symptoms throughout 2004 and until the removal of the tumour in 2005. Nor is it disputed that her ongoing vomiting and other gastrointestinal symptoms, coupled with her weight loss and overall deterioration, was due to the tumour. In particular, Dr Sandford said so in his first report. Accordingly, the plaintiff must be compensated at least for what she suffered for a period of a little over 12 months, being the interval between the time at which she would have had the cancer removed and when it was removed. The suffering of these symptoms and more generally her very poor health was made particularly difficult for her by her pregnancy. There was also the fact that she was admitted to hospital for psychiatric treatment before it became apparent that her illness had quite another cause.
Dr Stewart said that the same surgery would have been required in 2004. He said that it was possible that as at February 2004, the tumour had metastasised, but he was unable to say whether that was probable. That is relevant to the likelihood that she would have undergone chemotherapy after an operation in 2004. Dr Stewart said that even if the tumour had not then metastasised, some form of chemotherapy would have been “offered”.
Dr Thomson, a specialist medical oncologist, said that more probably than not the tumour had metastasised by February 2004. He said that if the cancer had not metastasised in 2004, chemotherapy would not have been required. He said that the surgery would have been the same in 2004, involving the same amount of tissue taken.
Dr Frost, a clinical haematologist, said that her treatment would have been the same in 2004 and with effectively the same impact upon her life and recovery time. In particular, the need for assistance with domestic tasks after surgery had not increased as a result of the delay. But he added that he would not be surprised that the plaintiff was very fatigued with sapped energy levels for a “very long time” after her surgery if she began her recovery weighing only about 33kg. That appeared to agree with Dr Hourigan’s evidence that her recovery would have taken longer for the fact that she was in a much weaker state by 2005.
Dr Hourigan said that the plaintiff would not have needed chemotherapy had the tumour not metastasised. But neither his evidence nor other evidence proves that, more probably than not, chemotherapy would have been avoided.
The result is that it is not proved that the surgery and subsequent treatment would have been different in 2004. I accept that her recovery would have taken less time then, because her health had not deteriorated as far as it had by May 2005. But it is difficult to quantify the impact of that difference in relation to earning capacity or the need for care. She must be allowed some damages upon this basis, as well as for the effects upon her in the year or more prior to May 2005. Ultimately I accept that her recovery, so far as earning capacity and the need for care are concerned, was extended by at least six months because of the deterioration in her health by May 2005. Upon those findings I come to the components of her award.
General damages are to be calculated by reference to the Civil Liability Regulation 2003 (Qld). I accept the submission for the plaintiff that the most relevant item is item 59, which is described as “extreme injury to the digestive system not caused by trauma”. There is a comment next to item 59 as follows:
“An ISV in the lower half of the range will be appropriate if the injury causes a chronic infection, that requires prolonged hospitalisation, that will not resolve after antibiotic treatment for one year.”
The range for item 59 is 13 to 35. For the plaintiff, it is submitted that I should assess this case at that upper limit of 35. It is then argued that I should increase that by another 50% given the circumstances which included that “the plaintiff was brought to a state of emaciation and was on the brink of death”. However, the ISV may be increased beyond the range for item 59 only if this is a case which is to be characterised as involving “multiple injuries” for the purposes of the Regulation. The plaintiff’s argument does not identify any other “injury” than that for which item 59 is relevant. The question then is where this case should fit within the range for that item. I cannot accept that it should be the maximum of 35. The plaintiff’s ordeal was certainly considerable, but it must be acknowledged that it was for a limited period of time. The most serious cases within this item 59 would be patients who do not recover. The comment within item 59 is at odds with the plaintiff’s argument. The ISV here should be no more than the mid point of the range, which is an ISV of 24. Accordingly, general damages will be assessed, according to s 1(e) of Schedule 6A of the Regulation, at $33,200.
Past economic loss is claimed over effectively a period of six years eight months, and a total of $152,210.37 is sought. The plaintiff commenced to look for work at the beginning of 2010 but did not find a position until about the middle of last year. She now works about 20 hours a week performing clerical work. She hopes to work full time but does not feel she is yet strong enough to do so. I accept her evidence in that respect. But again, the question is one of measuring the impact of the delay in the diagnosis and treatment of her tumour. I will assess this component upon the basis that she would have returned to work six months earlier and that for the six months just passed she would have been working full time. Her present net income, working a 20 hour week, is about $21,528 per year. Allowing another six months of that (part time) income amounts to $10,764. Then the difference between her present income and that which, it is claimed, she would be making if working full time is a net difference of $331 per week. Allowing six months at that rate amounts to $8,606. She should also be allowed something for the fact that in 2004, her untreated cancer caused her to stop work in September, somewhat earlier than she would have done simply because of her pregnancy. I will allow another two months’ loss of full time earnings on that basis, which I will round to $4,000. The total award for economic loss will be $23,370. I will allow interest on that over a year at 2.75% which is $642.
Loss of superannuation benefits on those lost earnings, at the rate of 9%. will be allowed. Together with interest that is an amount of $2,161. For reasons already given, there can be no award for future economic loss.
There was unchallenged evidence by the plaintiff’s mother, Mrs Azar, as to the extensive care provided by her and her husband to the plaintiff until 2010. Even now she still helps the plaintiff with domestic work for a few hours a week. Again, the question is the extent to which more care was needed than would have been the case had the tumour been removed in 2004. Upon Mrs Azar’s evidence and using a rate of $20.00 per hour, the amount claimed for the period from January 2006 to June 2010 is $118,260. I shall allow $20,000 for past care upon the premise that at least another six months care was required.
The defendant admits that expenses totalling $11,376 were incurred for medical treatment. However, it does not concede that any of those expenses were the result of the delayed operation. I will allow $2,000 for the prospect that some of the expenses were the result of a slower recovery. That is necessarily a broad estimate but is meant to be inclusive of interest.
Accordingly, her damages are assessed as follows:
General damages $33,200
Loss of earnings $23,370
Interest on that loss $642
Loss of superannuation and interest thereon $2,161
Past care $20,000
Out of pocket expenses (inclusive of interest) $2,000
Total $81,373
There will be judgment for the plaintiff against the defendant in that sum.
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