McKay v McPherson
[2010] VCC 585
•11 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-06.04598 of 2006
| NATHANIEL MCKAY | Plaintiff |
| (BY HIS LITIGATION GUARDIAN ROBERT MCKAY) | |
| V | |
| MARGARET McPHERSON | First Defendant |
| (PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE IAN McPHERSON) | |
| And | |
| HOWARD McCORMICK | Third Defendant |
---
| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 April to 4 May 2010 |
| DATE OF JUDGMENT: | 11 June 2010 |
| CASE MAY BE CITED AS: | McKay v McPherson & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0585 |
REASONS FOR JUDGMENT
---
Catchwords: Alleged medical negligence – alleged failure by defendants to recognise that plaintiff was seriously unwell with symptoms of heart failure secondary to undiagnosed underlying cardiomyopathy – whether plaintiff should have been admitted to hospital at earlier time for treatment – causation issue – whether earlier treatment would have prevented cardiac arrest and hypoxic brain damage – whether causation proved on balance of probabilities or mere loss of a chance of a better outcome.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Curtain QC | Maurice Blackburn |
| with Mr M. Richardson | ||
| For the First & Third | Mr D. Brookes SC | John W. Ball & Sons |
| Defendants | with Mr R. Harper |
| COUNTY COURT OF VICTORIA | !Undefined Bookmark, I |
| 250 William Street, Melbourne |
TABLE OF CONTENTS
THE ISSUES – NEGLIGENCE AND CAUSATION...............................................................3
THE PROVISIONS OF THE WRONGS ACT 1958 (VIC) ......................................................6
QUANTUM ............................................................................................................................7
CHRONOLOGY OF EVENTS AS DEMONSTRATED BY
HOSPITAL AND DOCTORS’ RECORDS .............................................................................7
Warley Hospital Records (Exhibit “8”)...............................................................................7
Sunday, 14 December 2003.............................................................................................7
Dr McCormick’s Clinical Notes (Exhibit “9”).....................................................................9
Monday, 15 December 2003 ............................................................................................9
Wednesday, 17 December 2003 ......................................................................................9
Thursday, 18 December 2003........................................................................................10
BACKGROUND MATERIAL...............................................................................................11
EVIDENCE OF INSTRUCTIONS OF DR IAN McPHERSON
GIVEN TO HIS SOLICITORS PRIOR TO HIS DEATH .......................................................13
EVIDENCE OF THE THIRD DEFENDANT, DR McCORMICK ...........................................15
EVIDENCE ON THE ISSUE OF WHETHER DR McPHERSON
WAS NEGLIGENT ..............................................................................................................22
THE ISSUE OF WHETHER INFERENCES ADVERSE TO A
PARTY SHOULD BE DRAWN FROM THE FAILURE TO CALL WITNESSES .................34
ANALYSIS OF THE EVIDENCE IN RELATION TO DR McPHERSON’S
MANAGEMENT OF THE PLAINTIFF .................................................................................37
FINDINGS IN RELATION TO DR McPHERSON’S MANAGEMENT
OF THE PLAINTIFF ............................................................................................................48
EVIDENCE ON THE ISSUE OF WHETHER DR McCORMICK WAS NEGLIGENT...........49
EVALUATION OF DR McCORMICK’S EVIDENCE............................................................61
ANALYSIS OF THE OTHER EVIDENCE RELATING TO
DR McCORMICK’S MANAGEMENT OF MR McKAY........................................................70
FINDINGS IN RELATION TO DR McCORMICK’S MANAGEMENT
OF THE PLAINTIFF ............................................................................................................80
THE ISSUE OF CAUSATION .............................................................................................86
HER HONOUR:
1 The plaintiff, Nathaniel McKay, is presently aged 37 years, having been born on 21 September 1972. By his next friend, he has brought proceedings against the defendants, both of whom are medical practitioners, alleging that each defendant breached his duty of care to the plaintiff and, that by reason of the breach, he has suffered injury, loss and damage.
2 The first defendant, The late Dr Ian McPherson was a locum general practitioner on duty at the Warley Hospital at Cowes on Phillip Island on 14 December 2003, when the plaintiff attended the hospital seeking medical treatment. At that time, Warley Hospital was a small community-funded facility which had very limited services. It acted as a stabilisation centre where patients were admitted temporarily before being referred elsewhere for further assessment and management. The hospital itself had been joined as a second defendant, but was released as a party by the plaintiff prior to commencement of the trial.
3 The third defendant, Dr McCormick, was at all relevant times, the plaintiff’s general practitioner at the Bass Coast Family Medicine Centre at Cowes on Phillip Island. This practice was conducted in the same building as the Warley Hospital. The plaintiff attended him for medical treatment on the 15, 17 and 18 December 2003.
4 On 18 December 2003 Dr McCormick arranged for the plaintiff to be transferred by ambulance to Monash Medical Centre. He arrived at approximately 2100 hours. Dr West assessed him and his differential diagnoses were pulmonary embolism, cardiomyopathy, hypothyroidism and others. He ordered that he be admitted to the coronary care unit and that an urgent echocardiogram be undertaken the following morning. The next morning, 19 December, an echocardiogram showed a severely dilated left ventricle with severe reduction in systolic function. It also showed a moderately dilated right ventricle with moderate to severe reduction in systolic function. He was reviewed by a cardiologist, Dr Krafchek, later that morning. He ordered, amongst other things, that fluids be restricted to 1.5 litres per day and he prescribed a diuretic, Lasix, and requested further investigations. A short time after Dr Krafchek’s review, the plaintiff suffered an asystolic arrest of his heart at 1230 hours. He was unconscious for ten minutes before spontaneous circulation was restored. He suffered multi-organ failure and hypoxic brain damage.
5 The plaintiff remained an inpatient of Monash Medical Centre until 12 January 2004, when he was transferred to the Royal Talbot Acquired Brain Injury unit. He was ultimately transferred home to the care of his parents, Robert and Mary McKay, on 28 July 2004. The plaintiff has suffered very substantial cognitive and physical impairments consequent upon the asystolic arrest.
6 At the beginning of the trial the plaintiff appeared very briefly in the court. By consent, without him taking the oath, he was asked by his senior counsel to answer a few simple questions so that I might appreciate the nature of his impairments. He did not, otherwise, participate in the trial as a witness and it is common ground that he lacked the capacity to give evidence on matters in issue between the parties. It is common ground that the plaintiff requires very considerable supervision and assistance in the activities of daily living.
THE ISSUES – NEGLIGENCE AND CAUSATION
7 It is not in dispute that at the time of the asystolic arrest the plaintiff was suffering from cardiomyopathy. This is a disorder of the heart muscle which reduces the strength of the heart to contract. It may be a genetic disorder, due to the effect of some drugs or alcohol or due to a viral infection with myocarditis (inflammation of the muscular walls of the heart). Sometimes, no specific cause for cardiomyopathy can be identified. That appears to be the case with Mr McKay, although some expert witnesses who gave evidence seemed to think that myocarditis may be the cause.
8 Prior to his admission to Monash Medical Centre Mr McKay’s cardiomyopathy was undiagnosed, although it was considered by Dr McCormick as a differential diagnosis when he saw the plaintiff on 15 December 2003. It is the plaintiff’s case that when he saw Dr McPherson at Warley Hospital on 14 December 2003 he had signs and symptoms that should have made it apparent to Dr McPherson that he was seriously unwell and required immediate assessment by a specialist physician/cardiologist and transfer to a tertiary hospital. The same allegation is made against Dr McCormick in respect of the consultation which took place on 15 December 2003 and, indeed, each consultation thereafter until he was transferred to Monash Medical Centre on 18 December 2003.
9 It is the plaintiff’s case that had he been seen by a specialist physician/cardiologist and sent to a tertiary hospital on either 14 or 15 December 2003, then it is more probable than not that he would not have suffered the asystolic arrest and consequential hypoxic brain damage. The plaintiff does not suggest that either of the defendants should, necessarily, have diagnosed cardiomyopathy but says that a general practitioner exercising reasonable care in the circumstances of each of the defendants should have recognised that the plaintiff was seriously ill. The plaintiff says that the defendants’ failure to recognise that he was seriously ill and to arrange immediate assessment by a specialist physician/cardiologist and to transfer him, with all relevant information, to a hospital for appropriate treatment constitutes a want of reasonable care which has caused him injury, loss and damage.
10 It is not in dispute that each of the defendants, as medical practitioners, owed to the plaintiff a duty to exercise the standard of care which a reasonably prudent general practitioner in the circumstances of each of the defendants would have exercised. The defendants, who were each represented by the same counsel, deny that the care which they extended to the plaintiff was negligent. They particularly contend that at no time was the plaintiff’s presentation, either to Dr McPherson or Dr McCormick, such that he appeared to be so seriously ill as to require immediate referral to a specialist and hospitalisation. In particular, the defendants point to a relative lack of urgency in treating the plaintiff once he ultimately arrived at Monash Medical Centre. They contend that this is evidence that the plaintiff, even at that stage, was not seen by hospital staff to be so seriously ill as to require urgent treatment and that this supports their own assessments to that effect.
11 The defendants argue that, even if I were to find that they had been negligent in failing to refer the plaintiff to a specialist physician/cardiologist or tertiary hospital at an earlier time, that omission cannot be proved by the plaintiff to be causative of any injury, loss or damage sustained by him. They rely upon the fact that the plaintiff’s care at Monash Medical Centre did not prevent the asystolic arrest which occurred on 19 December 2003. They submit that this event came as a surprise to the hospital staff, and the plaintiff cannot prove on the balance of probabilities that earlier hospitalisation or treatment would have prevented the asystolic arrest which he suffered. The defendants claim that, at best, the plaintiff has demonstrated that he has lost a chance of treatment and of a better medical outcome which, in accordance with the recent High Court decision in Tabet v Gett (2010) HCA 12 (21 April 2010), is not a cause of action giving rise to a claim for damages at law in Australia.
12 Thus, the issues for determination are as follows:
1(a) Did the management of the plaintiff by Dr McPherson on 14 December
2003 constitute a breach of his duty of care to the plaintiff?1(b)
Did the management of the plaintiff by Dr McCormick in the period from 15 to 18 December 2003 constitute a breach of his duty of care to the plaintiff?
2.
If yes to either 1(a) or (b) was such breach a cause of any injury suffered by the plaintiff?
This issue requires determination as to whether it was more probable than not that the plaintiff would have avoided the asystolic arrest if he had been transferred to the Monash Medical Centre earlier than the evening of 18 December 2003 and/or if more information had been forwarded or more care exercised when the plaintiff was transferred.
THE PROVISIONS OF THE WRONGS ACT 1958 (VIC)
13 According to s.58, the standard to be applied by a court in determining whether Dr McPherson and Dr McCormick acted with due care is to be determined by reference to –
(a) what could reasonably be expected of a person possessing the skill of a medical practitioner in general practice; and (b) the relevant circumstances as at the date of the alleged negligence, namely, December 2003. 14 Section 59 provides that Dr McPherson and Dr McCormick are not negligent if it is established that they acted in a manner which was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances. Dr McPherson and Dr McCormick have each pleaded that this is the case, in paragraphs 22 and 23 of their respective amended defences filed on 23 April 2010.
15 On the question of causation s.51(1) states:
“A determination that the negligence caused particular harm
comprises the following elements –
(a)
that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)
that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
QUANTUM
16 In the event that I determine the issues of negligence and causation in the plaintiff’s favour, then the parties have agreed upon the quantum of the plaintiff’s claim for damages. Such agreement is subject to the approval of the court, given that the plaintiff is a person under a disability.
CHRONOLOGY OF EVENTS AS DEMONSTRATED BY HOSPITAL AND
DOCTORS’ RECORDS
Warley Hospital Records (Exhibit “8”)
Sunday, 14 December 2003
17 These records consist of only two pages of notes and two pages of a print out of an ECG.
18 At 1205 hours the plaintiff, Mr McKay, presented at Warley hospital. Under the heading “Main Presenting Problem” is written, “Difficulty in breathing” and then “diarrhoea”. The triage code is recorded as “4”. Under the heading “Nursing Notes” is written, “? Epigastric bloating” and then “sore throat”. Observations at 1615 hours are noted to be: temperature 37.5; pulse 137, blood pressure 116/80 and saturation of oxygen 90 per cent. (1615 hours is noted on the next page to be the time at which Dr McPherson authorised Mr McKay’s discharge.) Under the heading “Current Medication” is written “Efexor Muralax Seretide Airomir”.
19 Under the heading “Doctor’s Assessment” Dr McPherson has written various notes which, prior to his death, were interpreted by him in instructions to his solicitors ( Exhibit “4”) as follows:
“Distended but soft abdomen. Chest – Dual heart sounds all areas of chest. No abnormal resp. sounds noted. Patient volunteered that he was in ‘hospital’ once with a similar abdomen. The staff ‘sweated’ on a possible appendicitis. Tenderness was noted in the epigastrium but no mass noted. Normal bowel sounds were noted across the abdomen. Discomfort was reported in the back of the throat, raising a query of incarcerating hiatus hernia? No positive signs of gallbladder or pancreatic dysfunction.”
20 No provisional diagnosis was made by Dr McPherson but he prescribed “intramuscular buscopan 20mg (an anti-spasmodic medication for stomach cramps) and Phenergan 25 mg” (an anti-histamine). Both of these medications were given at 1300 hours. Dr McPherson noted that the patient was to be observed over one hour and then reviewed. At 1500 hours he prescribed intramuscular Diazepam 10mg (a muscle relaxant) and Oral Zantac 300mg (an acid reducer for dyspepsia). These were given at 1510 hours. Also at 1400 hours the patient was given Ventolin 5mg in a nebuliser. All of the foregoing information is on the first page of the hospital records.
21 On the second page of the hospital records the following frequent observations are recorded:
FREQUENT OBSERVATIONS PUPIL SIZE
Time T P R BP Sa O2 O2 l/m 139/109 1210 373 174 28 96% 6 132/90 1225 140 28 147/92 1330 141 28 97% 6 136/88 1400 138 28 95% 6 123/81 1430 139 28 94% 6 116/80 1615 375 137 26 90% - 22 At the top right-hand side of the front page of the Warley Hospital records there is a vertical column which has recordings of the plaintiff’s temperature, pulse, respirations and blood pressure which are the same as those noted at 1210 hours. In addition, his oxygen saturation on air is noted to be 91 per cent and with assisted oxygen, to be 96 per cent. Beside this column there is a second column which notes the plaintiff’s pulse to be 137, his respirations to be 24 and his blood pressure to be 132/90. It is not clear from the record itself when these latter observations were taken. The time of the plaintiff’s discharge (“time out”) is noted on this same page to be 1745.
23 It was noted at 1210 hours that the location of the plaintiff’s pain was epigastric and the scale was five out of ten.
24 It was also noted at 1615 hours that the patient was seen by Dr McPherson and was able to be discharged. There are no notes of Dr McPherson’s examination prior to discharge.
25 Whilst at Warley Hospital an ECG was performed which has typed on it “sinus
tachycardia left atrial abnormality. T abnormality in anterior leads, high lateral
leads”. On its face the ECG states “unconfirmed report”.
Dr McCormick’s Clinical Notes (Exhibit “9”)
Monday, 15 December 2003
26 Mr McKay, attended Dr McCormick at 1123 hours and Dr McCormick’s notes are as follows:
“In hospital yesterday with bloating in the abdomen and hard to breath. Has bronchitis and sore throat and headache. Had diarrhoea as well. Had tests for heart and had injection for Buscopan and tablets. In for a few hours. Very weak. Takes 2 steps and has to stop. Had chest cold and sore throat for a few days. Usually has hay fever this time of the year but this unusual.
Examination:
Ears OK and throat red. Chest mostly clear and no signs of cardiomegaly (My note: heart enlargement) but has tachycardia (My note: rapid heartbeat)
27 Dr McCormick made a diagnosis of viral infection with bronchitis. He had a differential diagnosis of cardiomyopathy, but found no evidence of cardiomegaly or heart failure.
28 Dr McCormick arranged for Mr McKay to undergo a chest x-ray noting “short of breath and cough”. He prescribed antibiotics, “AMOXIL CAPSULE 500mg 1 t.i.d”, and also an “AIROMIR CFC – FREE INHALER 100 mg/dose 294 h.p.rn”. He apparently wrote a certificate for Mr McKay to have time off work.
Wednesday, 17 December 2003
29 Mr McKay attended Dr McCormick at 1659 hours:
“Feels getting worse not better. Cough for two weeks and lethargy. Went for a day and came back. Had viral aches and pains and bloating in the abdomen for the last week. Similar episode in Cairns last year. Drinking more water of late.
Examination:
General:
BP (sitting) 128/110
Pulse (sitting): 128
H1 H2 only” (My note: This means two heart sounds and is a normal finding.) “but clearly tachycardia. AB in fifth LICS 14cm from midline.” (My note: This is a finding that the heart is enlarged.)
By this stage Dr McCormick had received the results of the chest x-ray which was reported as showing an enlarged heart and global changes consistent with cardiomyopathy. Dr McCormick rang the rooms of a cardiologist, Dr Jack Krafchek, and obtained an appointment for Monday 22nd at 2.30pm and wrote a letter of referral. He also ordered blood tests noting “tachycardia and ? cardiomyopathy” and instructed Mr McKay to fast from 8pm before the test and have water only. He appears to have given a further certificate for time off work. (My note: coincidentally, Dr Krafchek was the cardiologist on duty at Monash Medical Centre who reviewed Mr McKay shortly before his asystolic arrest on 19 December.)
Thursday, 18 December 2003
30 On this day Dr McCormick received the results of blood tests which he had ordered the previous day. The liver function tests were abnormal, although full blood count and thyroid function tests were normal.
At 1656 hours Mr McKay saw Dr McCormick and Dr McCormick’s notes are as follows:
“Examination:
General:
BP (sitting): 114/100
Temp 36.9 tympanic”
Dr McCormick called an ambulance to take Mr McKay to Monash Medical Centre and wrote a letter of referral. He sent Mr McKay home to wait for the ambulance.
BACKGROUND MATERIAL
31 At the time of the consultations with Dr McPherson and Dr McCormick, the plaintiff, Mr McKay, was aged 31 years. His father gave evidence that the plaintiff was a fitter and turner by trade and a robust sort of person who was a handyman. He had met his partner, Simone, in the mid 1990s and they had commenced living together around that time. They had two children – Kaleb, born on 21 July 2000, and Tyrone, born on 18 September 2001. In 2001 they had moved to live on Phillip Island. In approximately August 2003 the relationship between the plaintiff and Simone ended. They separated and Simone and the children moved to Melbourne. The plaintiff’s father gave evidence that the plaintiff suffered from depression due to the deterioration in his relationship with Simone.
32 Dr McCormick’s clinical records show that between 17 July 2003 and 19 November 2003 the plaintiff attended him on nine occasions. He had a history of asthma, coeliac disease and oesophagitis. He had difficulty with sleep and there was a suggestion that he may have had sleep apnoea, but no evidence that this issue was followed up. Most of the consultations relate to Mr McKay being treated for depression for which he was prescribed anti- depressant medication. He was also prescribed medication to help with his sleep. Prior to 15 December 2003 the plaintiff had last attended Dr McCormick on 19 November 2003. It is not suggested by the plaintiff or the defendants that there is anything in particular in Dr McCormick’s notes prior to 15 December 2003 to suggest that the plaintiff had any cardiac problems.
33 The parents of the plaintiff, Robert and Mary McKay, gave evidence that in December 2003 they were living in Cairns, but had regular telephone contact with the plaintiff, their only child, with whom they had a close relationship. Mary McKay gave evidence that, prior to Sunday 14 December 2003, she was aware that the plaintiff was suffering from depression and, after he split up from Simone she would speak to him every day. She was aware that he had a cold prior to 14 December but, otherwise, had no knowledge of him being unwell. At about mid morning, Cairns time, on 14 December 2003 the plaintiff had phoned her and asked whether his ambulance subscription was up to date. He said he was in a lot of pain and that he had his sons with him for access that weekend. He had rung Simone and was waiting for her to come and collect them because he was going to the Medical Centre at Warley. She said he normally had access to the boys until 5 o’clock and it was unusual for him to ask Simone to come down and get them. She said that later that day he rang to say that he was home from the hospital, but he did not want to talk. He just wanted to get off the phone.
34 Mrs McKay had a further conversation with the plaintiff about midday, Cairns time, on Monday, 15 December, in which the plaintiff indicated that he was going for an x-ray. Then, on the afternoon of 16 December she had another telephone conversation with him. It had previously been arranged that the plaintiff’s father would come down to visit him and the plaintiff rang asking if his father could come down earlier. Mrs McKay said that he did not say why and he did not want to talk, which was uncharacteristic of him.
35 On Wednesday 17 December, at approximately five o’clock, Cairns time, Mrs McKay said that the plaintiff spoke to her and said he had a diagnosis of cardiomyopathy and had to go for some blood tests and also to see a specialist the following Monday. She said he inferred that he might go to hospital the next day. On Thursday 18 December he rang her asking if his father was coming down earlier and said he was going to ask Simone if she would bring his sons to see him because he was going into hospital and was likely to be there for six weeks and would not be able to see them. The last conversation she had with him was later that evening when he simply said that it was not a good time to talk and that was apparently as he was being transported by the ambulance.
36 The plaintiff’s father gave evidence that, pursuant to an arrangement made prior to the plaintiff becoming unwell, he had booked to come to Melbourne on Friday 19 December. He was unable to accommodate his son’s request to bring his trip forward due to his own business commitments. He said that the plaintiff had moved house approximately two weeks prior to the cardiac arrest and he had earlier offered to come down and help the plaintiff move his things, however, the plaintiff had said to leave it until he was settled in. He said that, after the plaintiff had the cardiac arrest, he went to the plaintiff’s house and it was apparent that he had unpacked a minimum of items and most of his things were still unpacked in the garage. He also said that on the evening of Thursday 18 December 2003, at approximately 11.30pm, Cairns time, he received a call from Monash Medical Centre indicating that their son was thought to be more seriously ill than was initially thought to be the case and perhaps the plaintiff’s mother should also come down to Melbourne.
EVIDENCE OF INSTRUCTIONS OF DR IAN McPHERSON GIVEN TO HIS
SOLICITORS PRIOR TO HIS DEATH
37 In March 2008, after these proceedings had been issued, Dr McPherson, who was then still alive, provided written instructions to his solicitors (Exhibit “14”). These include the aforementioned interpretation of the Warley Hospital notes. The further instructions expand upon those notes and are as follows:
“This emergency service was not a full ER, but one which could provide instant management of minor problems such as would be managed in a general practice setting, could provide hospitalisation for other conditions – such as for pneumonia or for rehydration, but could only manage such issues as cardiac resuscitation to a stable state – after which the patient would be moved to Dandenong Hospital or to Monash Medical Centre (most time by air ambulance).
It was on Sunday 14th December 2003, at 12:05 hours, that Mr McKay presented to the hospital ESS complaining of diarrhoea and difficulty with breathing.
He was noted to be non-febrile with a blood pressure of 139/109 mmHg and a regular pulse rate of 174 bpm.
His presenting medication included Efexor, Murelax, as well as Seretide and Airomir for asthma control. Allergies included Maxolon and Stemetil.
On further questioning he indicted discomfort in the back and in the throat. He had never had an operation, but was once detained in hospital “for observations relating to a suspected appendicitis”.
Examination revealed a distended, soft abdomen, with slight tenderness noted on deep palpation of the epigastrium. Bowel sounds were normal. There were no positive clinical findings to indicate gall bladder or pancreatic disease.
Examination of the chest indicated some possible hyperinflation and, on auscultation, revealed no adventitiae of significance due to some use of asthma medication. No cardiac murmurs were noted, nor was a third heart sound detected. The elevated heart rate was put down to asthma medication.
Diagnosis was multifaceted:
1. a viral enterovirus could be present, causing the back discomfort, sore throat, bloated abdomen and diarrhoea;
2. a bloated abdomen pushing on the diaphragm could compromise lung function as well as displace the hearts normal position;
3. may have had reflux due to pressure effect on the hiatal opening between abdominal and thoracic cavities; and
4. thinking enterovirus as a possibility, viral meningitis was excluded.
In the ESS it was thought that usual peristalsis was compromised and so Buscopan 20 mg and Phenergan 25 mg were given intramuscularly in order to relieve distension and nausea. Ventolin 5 mg was given to aid ventilation once the abdominal distension eased.
Once comfortable and as x-ray services were not available on that particular weekend, an ECG was performed. This showed a sinus tachycardia – a feature not surprising because of a known history of asthma, the effects of asthma medication, pressure on the diaphragm and the possible presence of an enterovirus.
There was no ECG evidence of ischaemia, but minor abnormalities were noted – probably due to cardiac displacement secondary to abdominal pressure on the diaphragm. Clinically there was no evidence of dehydration.
Mr McKay was reviewed at 13:00 hours with no diarrhoea reported in the nursing notes. Some epigastric discomfort was still present and the patient was not really relaxed. Diazepam 10 mg/i.m. and 300 mg of oral Zantac was given.
By 17:45 hours, Mr McKay seemed to eventually relax, was breathing easy, and was accepting fluids. The pulse rate had reduced to 137 bpm and the blood pressure to 116/80 minHg. He seemed comfortable and the distension had eased.
We advised that he could leave, that he possibly had a summer enterovirus, and that should he note return of symptoms or develop a stiff neck or headache he should return immediately to BCFM. In addition, should he have increased respiratory difficulty immediate attendance at the medical practice would be prudent.”
EVIDENCE OF THE THIRD DEFENDANT, DR McCORMICK
38 Dr McCormick has been a medical practitioner in general practice since 1979. He stated that Dr McPherson was a locum at the Warley Hospital, whose shift finished at 8am on Monday, 15 December 2003. He said he believed that on that morning Dr McPherson had mentioned to him that he had seen his patient, Nat, on the weekend. Dr McPherson did not know what was wrong, but said that he had presented with mainly epigastric, pain but seemed to improve, and he needed to be followed up. Dr McCormick was unable to recall anything further about this alleged “handover” by Dr McPherson.
39 Dr McCormick believes that when he saw the plaintiff on Monday 15 December he had the Warley Hospital notes, or some of them, but seemed unsure about this. He said that when patients of his had been seen at the hospital on the weekend, it was the usual practice for, at least, the front page of the records to come to him, although not necessarily the nursing observations. He said that the front page of the plaintiff’s hospital record had vital signs on it, his vital signs on arrival and prior to discharge (a reference to the vertical columns on the top right-hand side of the page). He believes he also had the echocardiograph from the hospital.
40 Dr McCormick confirmed the history with which the plaintiff presented to him on the Monday morning as recorded in his clinical notes. He stated that what Nat said about walking two steps and having to stop did not accord with the observations that he, Dr McCormick, had made about Nat walking from the car park to the reception area and walking into his consulting room. However, he conceded that he did not know whether the plaintiff had driven to his rooms and that he had not recorded these observations.
41 Dr McCormick stated that when he examined the plaintiff, he found that his ears were okay and his throat was red. He listening to the plaintiff’s chest with his stethoscope and noted that the chest was “mostly clear”. He said that meant that there were some abnormal signs that were not clearly defined. He tested for cardiomegaly (enlargement of the heart) by feeling the apex beat in relation to the middle of the clavicle going down perpendicularly to the nipple. He found no cardiomegaly. He listened to the heartbeat and found it, but the plaintiff had tachycardia (rapid heartbeat). He conceded that he did not note the heart rate, which he admits was not good practice. He said he conducted three standard tests to see whether there was cardiac failure, namely, the assessment of jugular venous pressure, listening to the lungs for crepitations or crackles in the base, and checking for oedema in the legs to see if there was any accumulation of fluid. These tests did not show evidence of heart failure.
42 He stated that his diagnosis was a viral infection with bronchitis and for this reason he prescribed Amoxil. However, some weeks earlier, he had had a young patient with cardiomyopathy and he was aware that there could be a rare version of cardiomyopathy that occurred in younger people and he wondered whether there was a chance that this is what the plaintiff was suffering. Accordingly, his differential diagnosis was cardiomyopathy. He agreed that it was a potentially fatal disease. For this reason, he decided to order a chest x-ray, although he knew that he would not receive the report of it for two days. He ordered this due to the plaintiff’s shortness of breath and cough.
43 Dr McCormick conceded that the nursing observations recorded at the Warley Hospital when the plaintiff presented there the previous day, showed that the plaintiff was probably seriously ill. These were a pulse rate of 174, an oxygen saturation of 91 per cent unassisted and rising to 96 per cent with oxygen support, and respirations of 28. He agreed that Mr McKay’s vital signs, documented at the time Dr McPherson authorised his discharge at 1615 hours were temperature 37.5, pulse 137, respirations 26, blood pressure 116/80 and oxygen saturation of 90 per cent without assistance. He said that it would appear from those signs that Mr McKay was still seriously unwell. He did not understand why he was sent home and he, Dr McCormick, would not normally or reasonably have done that. He agreed that it was not reasonable to discharge Mr McKay from Warley Hospital without follow-up. However, notwithstanding that those details were available to him on the Monday, Dr McCormick did not take any of the plaintiff’s vital signs. He said he could not remember whether he looked at those records to inform himself and said it would have been “wise” to do so. He stated, “If I had those, if I had gone
through all those details and I hadn’t had a handover, I probably would have put more weight on those findings than on what the handover had suggested”
(T 637).
44 Dr McCormick conceded that on Monday, 15 December 2003, he did not take the plaintiff’s temperature, even though he was trying to determine whether he had a fever. He ultimately conceded that it was a basic thing to do. He also conceded that he did not note his heart rate or his respiratory rate. He said he did not take his oxygen saturation as he did not have a monitor for this and the plaintiff would have had to pay a fee to go to the hospital next door to have it measured on their monitor.
45 Dr McCormick said that on 15 December 2003 his recollection was that his observations were not in accordance with what he was being told by Mr McKay about shortness of breath. He said Mr McKay did not look short of breath, he was conversing without pauses, he walked from the carpark to the rooms and was not short of breath when he arrived. However, he conceded that he has not recorded any of these things or, indeed, anything about the plaintiff’s physical appearance, in his clinical notes. He said that the plaintiff suffered from depression and when he had problems, he found them hard to cope with, and some would call this exaggeration. Nevertheless, he operated on the basis of assuming the worst and this was why he ordered the chest x- ray, to exclude the diagnosis of cardiomyopathy. He stated that he expected that on the Wednesday, the plaintiff would be better, and that his differential diagnosis of cardiomyopathy would be wrong.
46 On Wednesday, 17 December 2003, the report of the x-ray, which was apparently taken on 15 December 2003, was received by Dr McCormick. It stated as follows:
“The heart is enlarged and there is hilar congestion and upper lobe vascular diversion. The lung fields and pleural spaces appeared otherwise clear.
In view of the patient’s age a cardiomyopathy is suggested.”
47 On this day, the plaintiff came back to see Dr McCormick and Dr McCormick noted that he “feels getting worse not better”. Dr McCormick confirmed the rest of the history and examination as previously detailed in paragraph 29. He noted that Mr McKay had had a cough for two weeks and lethargy and then “went for a day and came back”. In oral evidence he said he was not sure whether that referred to him being better for a day between Monday and Wednesday or whether he was better for a day within those two weeks. Mr McKay’s blood pressure was 128/110, and Dr McCormick said that the systolic (upper) reading was normal but the diastolic (lower) reading was very high. Normal would have been 85 to 90 or less. He said his pulse was raised at 128. When he listened to the plaintiff’s heart he could only hear only the two normal heart sounds but he was clearly tachycardic. This time, he used a different method of seeing whether the heart was enlarged. Dr McCormick’s notation “AB in fifth LICS 14 centimetres from midline” means that the apex beat was in the fifth left intercostal space 14 centimetres from the midline, indicating that the heart was enlarged. He said he questioned whether the traditional method of measuring the heart, which he had used on the Monday, was correct. He noted that the x-ray report showed an enlarged heart and global changes consistent with cardiomyopathy. However, in evidence he said that the reference in the report to vascular diversion suggested some signs of cardiac failure, but there were no signs of cardiac failure in the base of the lungs. He stated that he still believed there was time to work it out and he decided to refer the plaintiff to a cardiologist, Dr Jack Krafchek.
48 Dr McCormick rang Dr Krafchek’s receptionist and asked for an urgent appointment but was told that the first available appointment was on Monday, 22 December at 2.30pm. He wrote a letter of referral to Dr Krafchek (Exhibit “3”). In that letter he refers to the plaintiff as follows: “He is very short of breath and cannot work for the last week. He is not improving.” He noted his findings on examination and questioned whether the plaintiff had a “gallop rhythm”, although he conceded that the latter was not recorded in his notes. Dr McCormick said a gallop rhythm is “when you’re listening to a very fast
heart, instead of sounding the normal two heart sounds, it sounds like a horse
racing along a track or a beach” (T 645). He said it is abnormal and signifies possible serious problems with the heart which can mask the fact that there may be more than the normal two heart sounds.
49 In addition to referring the plaintiff to be seen by Dr Krafchek five days hence, Dr McCormick states that he gave the plaintiff a sample pack of Coversyl. This is an Angiotensin Converting Enzyme (ACE) inhibitor. He prescribed this because he was concerned about the plaintiff’s blood pressure. He said that this medication relaxes the blood vessels, thereby lowering blood pressure and helps the heart work more efficiently, particularly in signs of cardiac failure. In addition, Dr McCormick arranged for blood tests to be carried out. As on 15 December 2003, his notes of 17 December 2003 record nothing about his own assessment of the plaintiff’s appearance.
50 On Thursday, 18 December 2003, Dr McCormick received a fax reporting on the blood tests which he had ordered the previous day (Exhibit “13”). One report, which was of a normal full blood examination, appears from the marking at the top of the fax to have been faxed through at 1144 hours on 18 December. However, more results, which included liver function tests, appear from the marking at the top of the fax, to have been faxed through at 1151 hours on 18 December. Dr McCormick said that the liver function tests were “extremely concerning”. In particular, he had “very very rarely” seen such low albumin levels unless a patient was very badly malnourished or had a nasty disease like cancer or alcoholism. The biliruben levels were also elevated, indicating that plaintiff’s “liver was not working properly”. In addition, the liver enzymes told “the story of a quite badly damaged liver” (T 612-3). Dr McCormick was not sure what time he had actually seen the fax but said it probably would have been around lunchtime. He stated that once he had received those tests, particularly the liver function tests, he thought that the plaintiff needed to be in hospital. He maintained that the plaintiff did not appear to be sick, yet the blood tests were telling a different story. He stated that it was not clear what was wrong but the abnormal liver function test suggested something was not right. He stated that he felt conflicted because on the Sunday the plaintiff had presented with abdominal problems, on the Monday with what appeared to be viral infection with bronchitis and the chest x-ray said possible cardiomyopathy. He said it was not at all clear what was going on but the abnormal liver function tests indicated that it needed to be sorted out. He stated that the standard rule that he used was “three strikes and you’re out”, that is, if he did not solve the problem in three consultations then the patient goes to hospital to get it sorted out (T 617-618).
51 Dr McCormick did not see Mr McKay until approximately five hours after receiving the abnormal liver test results. He stated:
“Before I would send anyone to hospital I would need to see them again and so I would normally ask the receptionist to ring Nat and make sure he came in. And I’m not sure whether there wasn’t an earlier appointment or what happened but he was able to come in just before 5 o’clock at night”. (T 616)
52 Upon seeing Mr McKay, Dr McCormick took his blood pressure (114/100) and his temperature (36.9ºC). He called an ambulance, but sent Mr McKay home to wait for the ambulance. He said he believed that Mr McKay was physically capable of doing this and that he did not look any different to how he had looked on the Monday. However, he conceded that he did not write anything down about Mr McKay’s clinical presentation. He gave to Mr McKay a letter addressed to Monash Medical Centre which was in similar terms to the letter of referral to Dr Krafchek, except that he included a reference to the results of the blood tests: “His blood tests show abnormal lft’s but normal fbe and thyroid function”, and included a copy of those results with his letter. However, he made no reference to the fact that Mr McKay had been in the Warley Hospital, the ECG or any of the abnormal observations which were recorded in the hospital. Nor did he note that, he, Dr McCormick, had found Mr McKay to be tachycardic on the Monday, or on the Wednesday. He simply recorded his examination findings of that day (blood pressure 114/100, pulse (sitting) 144 and temperature 36.9 ºC). Dr McCormick was unable to offer any explanation for not having forwarded such extra information to Monash Medical Centre other than to say “one of the challenges we have with referring
patients to hospital is that whatever I send to them is basically ignored when they get to hospital, and what I found is a single page letter is more likely to be
read than a multiple page letter” (T 619).
53 Dr McCormick agreed that it would have been helpful if he had focussed more on the markedly abnormal vital signs in the Warley Hospital because they would have been confirmatory of his concerns that it was a cardiac issue (T 767-777). However, he maintained his view that the plaintiff did not look seriously ill. He could picture him at one of the three consultations and he did not look short of breath, he was conversing quite normally without pauses, and said that he walked from the carpark to his rooms and he was not short of breath when he arrived. He stated that, had the plaintiff presented as seriously ill, he would have referred him to hospital on the Monday. He did not believe that what he did was inadequate. He said that cardiomyopathy is a rare disease and the chance that the plaintiff had it was very very small and not everyone with a serious illness needs to end up in hospital. He did not believe that sending the plaintiff to hospital earlier would have made any difference to the outcome.
EVIDENCE ON THE ISSUE OF WHETHER DR McPHERSON WAS NEGLIGENT
54 Dr Raftos is a specialist in emergency medicine. He was asked by the plaintiff’s solicitors to examine the Warley Hospital notes and to provide comment upon the adequacy of the care provided by Dr McPherson. His report dated 2 November 2009 is Exhibit “F”.
55 His evidence in that report and on oath is that Dr McPherson’s management was not satisfactory in that he did not write a history, which is an essential component of the diagnostic process and, to deviate from that path, lays the patient open to risk of misdiagnosis. However, his most serious criticism of Dr McPherson was his failure to recognise that Mr McKay’s heart rate was seriously elevated above 100 beats per minute for the entirety of the period that he was observed at Warley Hospital and was still 137 beats per minute at 1615 hours when Dr McPherson reviewed him and said he could be discharged. Dr Raftos said that if one looks at 100 people who have a heart rate above 100 beats per minute, then 95-99 per cent of them would have a serous illness. This is because an elevated heart rate is a sensitive indicator of serious illness. Dr McPherson was wrong in attributing Mr McKay’s elevated heart rate to asthma medication. The Ventolin which he was given at 1400 hours might have elevated his heart rate to something less than 150 beats per minutes, but its effect would be gone within 20 minutes. He stated that Dr McPherson’s failure to appreciate that Mr McKay’s tachycardia of greater than 130 beats per minute indicated the presence of a serious acute illness and required urgent investigation in hospital, represents a major departure from what would be widely accepted by peer professional opinion in Australia to be competent medical practice.
56 Dr Raftos also noted that, when Dr McPherson authorised his discharge, Mr McKay had oxygen saturation of 90 per cent of breathing air, which indicates a serious impairment of respiration that needs investigation. As with the elevated heart rate, it is a sensitive indicator of serious illness. Mr McKay had also had a respiratory rate of 28 per minute whilst under observation which only reduced to 26 per minute. This is abnormal, as the upper limit of normal respiration would be 20 breaths per minute. Whilst not as sensitive an indicator for serious illness as elevated heart rate and decreased oxygen saturation, it was still suggestive of serious illness.
57 Dr Raftos stated that people who are seriously ill can look alright. How a patient looks is a subjective assessment, so in emergency medicine one relies heavily upon vital sign observations as objective indicators to discriminate between those patients who are seriously ill and those who are not. Heart rate and oxygen saturation are objective and it is very difficult to get a low oxygen saturation or a very rapid heart rate without being seriously ill. Whilst he was not suggesting that Dr McPherson should have been able to diagnose cardiomyopathy there and then, Dr Raftos said that there were any number of diagnoses which should have been considered, all of which were potentially life threatening and required urgent treatment. He stated that for his own safety Mr McKay should have been admitted to hospital, had x-rays and blood tests and an urgent consultation with a specialist. In the absence of those services at Warley Hospital he should have been urgently transferred by ambulance to the nearest hospital with such services. Dr McPherson’s failure to organise appropriate urgent investigations to diagnose the cause of Mr McKay’s breathlessness, abdominal pain and tenderness and tachycardia represented a major departure from what would have been widely accepted by peer professional opinion in Australia in 2003 to be competent professional practice.
58 He stated that it was negligent of any doctor, whether a general practitioner or emergency specialist, to send a patient home with a heart rate of 137 and oxygen saturation of 90 per cent because the likely result is that the patient would either die or become more seriously ill in the next 24 hours. He stated that the ECG performed at Warley Hospital could not give any comfort to Dr McPherson that there was nothing seriously wrong with Mr McKay’s heart. He should have been aware that, when one has severe tachycardia, as Mr McKay did, that can mask variations from the normal and make it difficult to interpret an ECG because the heart rate tends to obscure the ST segments. For Dr McPherson not to have sent McKay urgently to a hospital for investigation of his elevated heart rate and oxygen desaturation was a substantial departure from what you would expect of any medical practitioner or a medical student in the circumstances.
59 Professor Cameron is a specialist in emergency medicine. At the request of the plaintiff’s solicitors he provided a report dated 13 January 2007 upon the adequacy of treatment received by Mr McKay at the Warley Hospital. It was tendered by the defendants as Exhibit “1”.
60 Professor Cameron noted that the only history on the hospital record appeared to have been taken by the triage nurse and there was no history documented by the doctor. He stated that the examination appeared to have been appropriate. However, he was critical that the Warley Hospital records showed no suspected diagnosis or plan for follow-up, particularly given Mr McKay’s temperature, pulse rate, respiration rate, blood pressure and oxygen saturation at the time Dr McPherson authorised his discharge.
61 He said that assessing patients with a past history of depression can be difficult, as symptoms can be overly emphasised by a patient. However, the main issue with Mr McKay’s vague presentation (difficulty breathing, epigastric bloating, diarrhoea and sore throat) was to recognise that the condition was serious and required further investigation, particularly given the sustained and marked tachycardia and tachypnoea (rapid breathing). Given the chest examination, he thought that asthma and pneumonia were unlikely, and that less common causes should have been considered for the marked tachycardia. These included pneumothorax, malignancy causing effusions, obstruction and cardiomyopathy. Persistent tachycardia may be the only initial sign of cardiomyopathy. He believed that the minimum investigations for this presentation should have included a chest x-ray and blood tests and, if symptoms persisted, then further investigation should have been organised, depending upon the clinical state.
62 Dr Chambers gave expert evidence as a general practitioner. She lectures in general practice at the University of Sydney, is a clinical skills educator in general practice for all New South Wales medical faculties, is involved in accrediting overseas-trained doctors as general practitioners and, also, in examining doctors for admission to the Royal Australian College of General Practitioners Fellowship Program. She had been asked by the plaintiff’s solicitors to comment upon the standard of care provided to Mr McKay by Dr McCormick, however, also gave evidence in relation to the Warley Hospital records. Her report dated 12 January 2008 is Exhibit “J”.
63 Dr Chambers stated that the hospital records showed that the plaintiff presented to Warley Hospital with extreme tachycardia, moderate tachypnea, and hypertension and saturation of oxygen without assistance of 91 per cent, which was abnormal. She said that whilst under observation at Warley Hospital, the frequent observations which had been recorded indicate significant respiratory distress. Mr McKay went to the hospital with seriously abnormal signs and left the hospital with seriously abnormal signs, and without any diagnosis. She was critical of Dr McPherson not arriving at even a differential diagnosis.
64 Dr Chambers stated that a general practitioner should have recognised the serious nature of Mr McKay’s presentation and she would not have discharged him. She was critical that Dr McPherson’s notes showed insufficient history, insufficient examination and no investigation. She said that the basic clinical method is to go through all these processes. She stated that the note “no adventitia” (no clinical signs of congestion in the lungs) by Dr McPherson suggests that the heart and the lungs were listened to and no abnormality was heard. However, she was critical that there appeared to have been no other examination for signs of fluid such as peripheral oedema and, particularly, raised jugular venous pressure, which was the easiest way of looking for heart failure. Moreover, the presence of two heart sounds plus no adventitia did not mean that heart failure was not present.
65 She agreed with Professor Cameron’s view that the main issue with this sort of vague presentation is to recognise that the condition is serious and requires further investigation. Although it could be difficult where a patient has an underlying psychiatric condition, the minimum investigation for this presentation should have included x-ray and blood tests. Once those tests had been done, if the symptoms persisted, then further investigations needed to be organised depending on the clinical state.
66 Dr Chambers said that, even if Dr McPherson had advised the plaintiff to seek further medical attention if symptoms returned or worsened, this was not adequate. Moreover, Dr McPherson had instructed his solicitors that he believed that the patient had an enterovirus. Although diarrhoea existed, an enterovirus did not explain the difficulty in breathing which was the primary presenting problem. The patient should have been warned that there are many serious causes of difficulty in breathing and given instructions appropriately. If a more detailed assessment was not done on the Sunday, then arrangements should have been made for a more detailed assessment on the Monday.
67 Associate Professor Richards, specialist cardiologist, gave evidence on behalf of the plaintiff. His reports dated 6 May 2009, 2 and 31 March 2010 and notes of conference dated 12 August 2009 are Exhibit “H”.
68 He said that the Warley Hospital records indicated to him that when Mr McKay attended there on 14 December 2003 he was severely unwell. His pulse of 174 was grossly abnormal. Normal would be around 70. His respirations of 28 per minute were very rapid. Normal is approximately half that, about 14 breaths per minute. His blood pressure was 139/109. Normal is 130/70. The lower reading, the diastolic, he thought was probably elevated because of distress. Mr McKay’s oxygen saturation, when given supplemental oxygen at six litres per minute, was only 96 per cent. Normal should be 100 per cent. Thus, even with supplemental oxygen, his oxygen saturation was very low. Rapid breathing is one of the compensatory mechanisms to improve oxygenation if one’s oxygen saturation falls. In other words, Mr McKay was hyperventilating. This can occur in anxiety states, but anxiety states do not cause oxygen desaturation. The administration of Ventolin can temporarily increase heart rate, but would not cause oxygen desaturation, as was the case with Mr McKay.
69 Associate Professor Richards stated that the epigastric discomfort suffered by Mr McKay was most likely due to liver engorgement because of poor heart function, although in cross-examination he conceded that Dr McPherson’s diagram of Mr McKay’s abdomen on which he had shaded in tenderness, was pretty non-specific. However, he also stated that tenderness in the region is entirely consistent with tension on the liver capsule and that discomfort in the right upper quadrant is due to pressure even before there is enlargement of the liver (T 328).
70 He noted that Dr McPherson had prescribed Buscopan, which is used to relieve discomfort caused by smooth muscle spasm in the bowel and bladder, and Phenergan, which is to reduce allergic responses and which is a sedative. Neither is appropriate as treatment for the tachycardia or the tachypnea or the hypoxia. He said that there were no indications that Dr McPherson had done anything to test for heart failure. He would expect a medical student and a general practitioner to have recognised that the patient was clearly unwell and that some explanation needed to be obtained for the very rapid pulse and the hypoxia.
71 Associate Professor Richards said that when Dr McPherson reviewed the patient at 1615 hours his pulse, respiratory rate and oxygen saturation on breathing room air were signs that Mr McKay was struggling. It was inappropriate for Dr McPherson to discharge him without considering the causes for the rapid pulse, the rapid breathing and the poor oxygenation. He said that, if he was examining a student who was dealing with that scenario, he would remind the student of the importance of simple observations and the need to explore and find explanations for them, or at least a differential diagnosis, and emphasise the need to request assistance. In his view, Dr McPherson should have sought the advice of a consultant physician or cardiologist in order to explore differential diagnoses to explain the tachycardia, tachypnoea and oxygen desaturation. That advice should have been sought immediately. If that was not possible, then the patient should have been transferred by ambulance to a centre such as Monash Medical Centre, where that assistance would have been available.
72 Dr Radford, consultant physician, gave evidence on behalf of the defendants. His reports dated 12 January 2009 and 2 September 2009 are Exhibit “6”. In the later report Dr Radford had expressed the view that both Dr McPherson and Dr McCormick were prompt and efficient in their treatment of Mr McKay. In evidence-in-chief he maintained this view, stating that he did not feel it could reasonably be alleged that two general practitioners faced with the very uncommon condition of cardiomyopathy, in a country area with limited facilities, should have admitted the patient to hospital. He expressed this view on the basis that when the plaintiff was initially admitted to Monash Medical Centre, no specific treatment was undertaken and he was admitted to the coronary care unit pending further investigations and reviewed the next day.
73 Under cross-examination, Dr Radford altered his view. He conceded that the recorded vital signs of Mr McKay showed that he was seriously unwell for his entire stay at the Warley Hospital. He said that, if he had been in the position of Dr McPherson, he would have admitted the plaintiff to hospital. Speaking as Chairman of the Determining Authority, Professional Services Review, (a Commonwealth authority which reviews the appropriateness of professional practices of doctors, including general practitioners) he considered that, in this case, the management and the clinical judgment did fail. He agreed that Dr McPherson had shown inadequate care as a general practitioner and it was unreasonable practice not to have stated categorically to the plaintiff that he must go back to see his usual general practitioner, and to record that advice. He agreed that no body of general practitioners would say that that failure was reasonable behaviour.
74 Dr Radford stated that although you could not criticise Dr McPherson for not having it all worked out on the Sunday night, he really should have realised that the tachycardia and the oxygen desaturation were indicators of a serious illness, so things got on the wrong track. Dr McPherson had no doctors’ history and he gave a lot of emphasis to the abdominal symptoms and his examination of the chest seemed to be normal. Looking at the clinical examination by Dr McPherson, one would have the impression that this man did not have a very serious problem, unless you looked at the vital signs that were recorded in the hospital record. The entirety of those observations are saying there is something wrong with the circulatory system. If Dr McPherson did no more than hand over to Dr McCormick, by saying that he had seen Mr McKay and he needed to be sorted out because he had some epigastric pain and was not sure what was wrong with him, then that put Dr McCormick at a disadvantage.
75 Associate Professor Strathmore, specialist cardiologist, was called to give evidence on behalf of the defendants. His four reports were tendered as Exhibit “6”.
76 In a report dated 22 December 2009 and two reports dated 11 March 2010, Associate Professor Strathmore stated that the management of Mr McKay by both Dr McPherson and Dr McCormick was entirely appropriate. However, he did note that there appeared to be no history taken by Dr McPherson. He also stated that there should have been further consideration of and management for Mr McKay’s tachycardia. He noted that the plaintiff’s oxygen saturation was 90 per cent and this was low but said, in the context of Mr McKay being a smoker, this may not be considered too bad. (However, I note that there is no history in the Warley Hospital records that Mr McKay was a smoker and, hence, this does not appear to have been a factor known to Dr McPherson.)
77 Associate Professor Strathmore noted that Mr McKay had presented with several symptoms, including diarrhoea and epigastric bloating, and that Dr McPherson’s major concern was for abdominal pathology, the examination of the plaintiff’s chest being normal. In the first of his two reports dated 11 March 2010 he stated that: “It appears that the patient settled whilst in
hospital, even though he continued to have tachycardia. As a general practitioner in a rural hospital, Dr McPherson’s conduct appears appropriate”.
He went on to state: “The patient was seen that day on two occasions by
Dr McPherson and was observed for over five hours in the Emergency Department so clearly the patient was appropriately assessed and was well
enough to go home.”.
78 In his oral evidence, Associate Professor Strathmore stated that there is a spectrum of presentations for people suffering from cardiomyopathy and some of those patients may appear well. Although he thought that Dr McPherson should have placed more weight on the tachycardia, Associate Professor Strathmore said that it is a non-specific finding and can be due to anxiety, dehydration, blood loss or many things and did not specifically point to cardiac failure. He thought the prominence of the tachycardia in Mr McKay’s presentation was a bit unusual, but would not have directed him personally immediately to a diagnosis of cardiomyopathy. He stated that nothing was specifically looked at to try and work out what was causing the tachycardia and he presumed that that was because Dr McPherson thought it was due to asthma or enterovirus or things like anxiety or agitation. He said that general practitioners see large numbers of respiratory illnesses but very few new diagnoses of cardiac failure, and cardiomyopathy is even rarer. In this context he thought it was difficult to be critical of either Dr McPherson or Dr McCormick.
79 Associate Professor Strathmore said it was possible that the heart rate of 174 initially recorded in the Warley Hospital notes was erroneous as this may be hard to take by hand, but perhaps it was a gallop rhythm. He stated that the vital signs at the time Dr McPherson authorised discharge were consistent with, but not specific for, cardio-respiratory embarrassment. They could also have been due to cholecystitis, cardiac failure, pulmonary embolism, pneumonia, pericarditis or pleurisy, and these are all potentially serious illnesses. However, they could also have been consistent with viral illness or bronchitis. He repeatedly expressed surprise that more weight wasn’t placed on the tachycardia but noted that that appeared to have been the case also with Dr McCormick and the doctors at Monash Medical Centre.
80 Associate Professor Strathmore stated that it is hard for him to say how unwell Mr McKay was without having seen him at the time. The only way doctors can assess the standard of what someone does at a particular time is by looking at how other equally qualified practitioners assess the patient at that time. This is why he considered that the judgment of Dr McCormick in not acting urgently and the apparent lack of urgency at Monash Medical Centre supported Dr McPherson’s conduct as appropriate. None of the indications in the notes of Dr McPherson, Dr McCormick or the doctors at Monash Medical Centre suggested that the plaintiff was severely unwell and the asystolic arrest seems to have come as a surprise to the Monash Medical Centre staff. That there was more than one person who made the assessment that Mr McKay was not severely unwell makes it more conclusive that he was not severely unwell when he presented to Dr McPherson and Dr McCormick. However, he accepted that it could be that both were completely misled and showed a lack of reasonable care.
81 Under cross-examination, Associate Professor Strathmore ultimately agreed that he was making an assumption that Dr McPherson had assessed Mr McKay adequately before sending him home. He agreed that a reasonable summation of his thought process about Dr McPherson’s conduct was as follows: “He discharged him home, he was probably acting reasonably
in doing so, therefore the patient must have looked well enough to go home”
(T 872).
82 He agreed that all Mr McKay’s vital signs, (respiration, pulse rate, oxygen saturation and temperature) had not shown any recorded improvement by the time of discharge and it would have been prudent for Dr McPherson to have recorded his reasons for discharging him with those abnormal signs. He conceded that he was making the presumption that Dr McPherson had acted reasonably, even though he did not have documentary evidence of his findings at the time of discharge, and Dr McPherson is not alive to tell us. He agreed that, at the very least, Dr McPherson should have told Mr McKay to go to his general practitioner for follow-up the next day. However, he was not prepared to say that Dr McPherson acted badly without knowing the overall picture of the patient. He was making an assumption that was positive to Dr McPherson based on the way that Dr McCormick had behaved the next day. He was not sure that Monash Medical Centre would have accepted the patient in the Emergency Department if Dr McPherson had rung and said “I’ve got a man here with sinus tachycardia of 140 who’s unwell” (T 874). It was not clear enough that the patient should be admitted because the general practitioner did not have the extra information of the x-ray and the blood tests. He agreed that it was “a very good point” that Dr McPherson should have arranged for an urgent x-ray given the signs that the patient had, but said it was reasonable not to do a chest x-ray because he understood it would have been very difficult for Dr McPherson to organise (T 1061). He said the reality of the health system in Australia is that rural patients do not get as good treatment as patients in the city. If Dr McPherson had assessed him as sufficiently unwell, then the thing to do would have been to transfer him to Monash Medical Centre but he was presuming that Dr McPherson’s assessment was reasonable.
83 Associate Professor Strathmore agreed that you would need evidence that McKay was not as ill as the vital signs showed in order to justify not sending him to hospital, but claimed that the assessments of other doctors who saw him in the same few days provided such evidence.
84 Dr McCormick, under cross-examination, stated that he did not have any doubt that on Monday, 15 December 2003, Dr McPherson had conducted the handover which he, (Dr McCormick) had described in his evidence. However, he agreed that there was nothing written down by Dr McPherson to suggest that he had made arrangements for Mr McKay to attend Dr McCormick the day after he had been to hospital. When told that he needed to follow something up, he would have to ring the patient if he did not already have an appointment. He agreed that a handover from one doctor to another with the patient having no idea that he is supposed to re-attend is a pretty pointless exercise and did not sound like good medical practice, if that is what occurred.
85 As previously mentioned, Dr McCormick agreed that the combination of pulse rate, respiratory rate and oxygen saturation in the Warley Hospital records, showed that it was likely that Mr McKay was seriously unwell when he presented there on Sunday, 14 December 2003. From the observations last recorded prior to Mr McKay being discharged, it would appear that Mr McKay was still seriously unwell. He said he did not understand why he was sent home and he would not normally or reasonably have done so. He ultimately conceded that he not think that it was reasonable care to send Mr McKay home from Warley Hospital with those vital signs and not to arrange a follow- up.
THE ISSUE OF WHETHER INFERENCES ADVERSE TO A PARTY SHOULD BE
DRAWN FROM THE FAILURE TO CALL WITNESSES
86 It was submitted on behalf of Mr Brookes of Senior Counsel for the defendants that, given that the plaintiff’s case is based on the premise that he presented as being seriously unwell to Dr McPherson at the Warley Hospital on 14 December 2003 and on each occasion that he presented to Dr McCormick on 15, 17 and 18 December 2003, then one would have expected the plaintiff call evidence from his former de facto wife, Simone. Mr Brookes submitted that she was a witness clearly within the plaintiff’s “camp” and the evidence of the plaintiff’s mother, Mary McKay, had been that her son had telephoned her prior to attending Warley Hospital on 14 December 2003 and indicated that he had rung Simone to ask her to collect his two sons early from their access visit to him, whereas normally he would have had them until 5 o’clock. Mrs McKay also gave evidence that Simone was present at Monash Medical Centre when she, Mrs McKay, arrived there on Friday, 18 December, and that Simon had visited on a number of occasions thereafter. Mr Brookes also pointed out that Mr Curtain of Senior Counsel for the plaintiff had put to Dr McCormick in cross- examination that the plaintiff had not driven to his rooms on Monday, 15 December 2003 but, rather, Simone had driven him there. Mr Brookes submitted that an inference should be drawn that Simone’s evidence would not have assisted the plaintiff’s case.
87 In response, Mr Curtain submitted that no adverse inference should be drawn, as the plaintiff’s father had given evidence that the plaintiff and Simone had separated and that the plaintiff had had difficulty obtaining access to his sons. He said there had been several visits to the Family Court, which involved the plaintiff’s parents, as well as the plaintiff.
88 Before drawing any inference under the rule in O’Donnell v Reichard [1975] VR 916, I first would have to conclude that Simone fell into the plaintiff’s “camp”. I find that I cannot so conclude because the plaintiff and Simone are now separated and, further, there has been litigation between them. Furthermore, it is not a situation where the plaintiff is able to give an explanation or fail to give an explanation because he is so profoundly brain- damaged. Finally, if I were able to conclude that the plaintiff fell into the plaintiff’s “camp” and I could infer that her evidence would not have assisted the plaintiff, that merely goes to a lay person’s untrained observations. Surely, this would be, at best, a very weak inference, given that the plaintiff obviously considered himself sufficiently unwell to seek medical attention of the Warley Hospital on a Sunday and gave a history that led to observations of an abnormal nature. Ultimately, I do not consider that the evidence of a lay person could really assist me in determining the reasonableness or otherwise of the assessment of a medical practitioner as to whether the plaintiff was well or unwell and whether or not he needed treatment.
89 Mr Brookes also submitted that an adverse inference should be drawn from the failure of the plaintiff to call any of the treating doctors from Monash Medical Centre to establish that he was seriously unwell when he presented there, given the relative lack of treatment that took place at that hospital. In response, Mr Curtain submitted that where there has been a non-elective admission to a public hospital, as was the case with the plaintiff, the treaters at Monash Medical Centre cannot be said to be in the plaintiff’s “camp”. Further, given that the defendants’ case is that the plaintiff was not seriously unwell at Monash Medical Centre, then they could have called doctors from that hospital and an adverse inference should be drawn against the defendants for not having called that evidence.
90 I believe that Mr Curtain is correct that, in the context of this case, the staff at Monash Medical Centre cannot be said to be in the plaintiff’s “camp”. The defendants could have called them just as easily as the plaintiff. In the circumstances, I do not consider it appropriate to draw an adverse inference against either the plaintiff or the defendants.
91 Prior to the closure of the case for the plaintiff, Mr Curtain obtained an admission from the defendants that they had obtained an expert opinion from a general practitioner, Dr John Stanton, embodied in a report dated 20 December 2009. In his opening and later in the trial, Mr Brookes had indicated that he would be calling Dr Stanton to give evidence. However, he was not called to give evidence and no explanation for failing to do so was given by the defendants. In the circumstances, Mr Curtain submits that I should draw the inference that Dr Stanton’s evidence would not have assisted the defendants and that I can also more readily accept the evidence of Dr Chambers, general practitioner, who gave expert evidence on behalf of the plaintiffs.
92 Mr Brookes, in response, submits that that course should not be taken because the evidence of Associate Professor Strathmore made it unnecessary to call Dr Stanton. However, Associate Professor Strathmore is a cardiologist and, given that the standard to be applied in determining whether there is negligence is the standard of the reasonable general practitioner in the circumstances of Dr McPherson and Dr McCormick, I do not consider that that submission is an answer to Mr Curtain’s contention. Moreover, Associate Professor Strathmore did not express the view that either of the defendants had acted in a manner that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice.
93 In the circumstances, I do think it appropriate to draw the inference that Dr Stanton’s evidence would not have assisted the defendants. Dr Chambers is the only general practitioner, apart from the third defendant, Dr McCormick, who has given evidence. I thus find that considerable weight should be given to Dr Chambers’ evidence as to what constitutes reasonable practice by a general practitioner. Under cross-examination, she remained steadfast in her view that both Dr McPherson and Dr McCormick, in failing to recognise that the plaintiff was seriously ill and in failing to arrange for an x-ray, blood tests and a consultation with a specialist, had acted beneath the standard to be expected of a general practitioner.
ANALYSIS OF THE EVIDENCE IN RELATION TO DR McPHERSON’S
MANAGEMENT OF THE PLAINTIFF
94 Dr McPherson’s notes in the Warley Hospital records are deficient in that they contain no history taken by him from Mr McKay prior to his examination. It is apparent from the front page of the records that difficulty in breathing was recorded as the first of Mr McKay’s main presenting problems. This was followed by diarrhoea and then query epigastric bloating and sore throat. The evidence of all doctors before me is that it is a fundamental part of practice as a doctor to take and record a history from the patient. Dr McPherson’s failure to do so is the omission of a crucial step in trying to determine what was wrong with the Mr McKay. In particular, Dr McPherson took no history of what the actual difficulty with breathing entailed. As Dr Chambers stated in her report (Exhibit “J”), he especially should have ascertained whether Mr McKay was suffering shortness of breath and, if so, whether that occurred when exercising (as in asthma) or nocturnally (as in cardiac failure) or in situations of stress (as in hyperventilation). Such a history is one of the steps that a general practitioner needs to take to exclude disease processes. In contrast to Dr McPherson, shortly after Mr McKay’s arrival at Monash Medical Centre, a history was taken by Dr West in which it is noted with an asterisk “s o b at night” (Exhibit “18”). I infer that this means shortness of breath at night, a symptom of cardiac failure.
95 Dr McPherson’s notes of examination indicate that he examined the chest and abdomen, he listened to the heart and found two heart sounds and “no adventitia” that is, no clinical signs of congestion in the lungs. The medication which he prescribed shows a focus on abdominal discomfort (the Buscopan) and oral reflux (Zantac). (The Phenergan is an antihistamine for allergies, and the Diazepam is for anxiety). Asthma medication (Ventolin) was also given to Mr McKay, although there is no note of the nature or extent of his history of asthma. Dr McPherson’s notes show that he did not arrive at a diagnosis or provisional diagnosis, save for indicating that there were no positive signs referrable to the gall bladder or pancreas.
96 There is absolutely nothing in Dr McPherson’s clinical notes to indicate that he paid attention to or provided an explanation for the markedly abnormal heart rates, respiration rates and oxygen desaturation which were recorded by the nursing staff from 1210 to 1615 hours, at which time Dr McPherson gave authority for Mr McKay to be discharged. Indeed, he made no note of any of his findings on examination when he reviewed Mr McKay at 1615 hours.
that early treatment of the cardiac failure may have prevented him having an asystolic arrest but I don’t believe there is any data to say this would be
probable”. In his oral evidence, Associate Professor Strathmore ultimately said that it was possible that earlier treatment would have avoided the arrest, but he did not think it probable (T 917).
Formatted: Bullets and
205 It is common ground that Mr McKay had an undiagnosed underlying condition Numbering of cardiomyopathy of uncertain duration and aetiology. It is also common ground that he was exhibiting some symptoms and signs of heart failure from 14 December 2003 onwards. Associate Professor Richards, Dr Radford and Associate Professor Strathmore agree that, had Mr McKay been admitted to Monash Medical Centre on 14 or 15 December 2003, the treatments that would have been given to him were oxygen, diuretics and ACE inhibitors. They seem to be agreed that beta blockers would have been gradually introduced later in time and possibly aldosterone treatment. They were all agreed that a defibrillator would not have been inserted in the timeframe between 14 or 15 December and the arrest on 19 December.
206
The echocardiogram which was performed at Monash Medical Centre on 19 December 2003 showed a severely dilated left ventricle with severe reduction in systolic function. The ejection fraction was visually approximately 10 per cent, that is, with each heartbeat, 10 per cent of blood was being ejected from the heart. This is about one fifth of normal ejection, which should be about 50 per cent. It is common ground that that reduced ejection fraction remained when a subsequent echocardiogram was taken on 3 February 2004 and it did not improve to near normal level until sometime later in 2005 or 2006. In addition, on 19 December 2003 the echocardiogram showed that the right ventricle was moderately dilated with moderate to severe reduction in systolic function.
207
Associate Professor Strathmore’s central premise was that Mr McKay’s heart was already so severely diseased that he could have suffered a cardiac arrest at any time. It was an event which could not be predicted. His evidence was that, although Mr McKay had symptoms and signs of cardiac failure from 14 December 2003 onwards, they were not completely clear. They were not so clear as to convince the doctors at Monash Medical Centre to treat him urgently for heart failure when he was admitted. It was an unusual presentation. He pointed to the fact that, even the chest x-ray taken at Monash Medical Centre on 18 December 2003 showed no pleural fluid so there was no great build up of fluid in the lungs, and Dr Lockwood, on reviewing Mr McKay overnight on 18/19 December 2003, noted no orthopnoea. He said that acute cardiac arrests are uncommon and Mr McKay’s arrest was “really like a bolt from the blue”. He said that the arrest related to the degree of heart damage and that would not have been altered by any treatment in the short term (T 914).
208
Associate Professor Strathmore stated that while it is possible that treatment for cardiac failure would have reduced Mr McKay’s chances of suffering an asystolic arrest through reduction of pressure on the conducting system of the heart, he was not aware of any data to support this hypothesis. In his evidence he adopted what he had said in the second of his two reports dated 11 March 2010 namely, “It is my understanding that the risk of cardiac arrest
in heart failure and cardiomyopathy is related to the left ventricular function irrespective of treatment as described. In addition, asystole is a less common rhythm as a cause for cardiac arrest in cardiomyopathy”.
209
Associate Professor Strathmore did not consider that Mr McKay’s oxygen saturation levels were so drastically low that oxygen therapy would have made much difference. He stated that oxygen would not have restricted the progress of the disease, it would give him more blood oxygen going to his vital organs, but he did not think that oxygen would have prevented the cardiac arrest.
210
As to acute treatment with diuretics or ACE inhibitors, Associate Professor Strathmore stated that it was his understanding that “that sort of early treatment, doesn’t really reduce the risk of cardiac arrest, certainly in the short term”. He stated that until the heart starts to recover, the risk for cardiac arrest is still present and this was related to the degree of severity of cardiac dysfunction (T 834).
211 Associate Professor Richardson responded to Associate Professor Strathmore’s statement that there is no data to support the proposition that cardiac failure treatment reduces the incidence of cardiac arrest acutely. In his report dated 31 March 2010 (Exhibit “H”), he stated:
“I agree that there [is] no data from prospective randomised controlled trials to indicate that the risk of cardiac arrest is reduced by treatment. Trials of withholding treatment in cardiac failure would not be ethical, just as trials of withholding parachutes in skydiving would be inappropriate.”
212 He reiterated this in his evidence and stated:
“I think that [Professor Strathmore’s] point is I, Dr Richards, cannot turn to the literature and say here is the evidence that intervening in heart failure reduces the risk of death. But what I can say is that when people have heart failure, we treat them, and the reason we treat them is to make them better.” (T 301)
213 Associate Professor Richards was quite emphatic that, in this case, there was fluid overload. Although he stated that there did not appear to be a great difference between the x-ray of Mr McKay’s lungs taken on 15 December 2003 (and reported on 17 December 2003) and the one taken in Monash Medical Centre on 18 December 2003, he noted that they did not appear to have been taken from the same viewpoint. In this regard, I note that Dr McPherson on 14 December 2003 had noted that the plaintiff’s chest was clear, whereas Dr McCormick on 15 December had noted that it was “mostly clear”. By the time Mr McKay was being transported to Monash Medical Centre on the evening of 18 December the ambulance officer noted “basal crackles” (Exhibit “19”). When Dr West examined Mr McKay at Monash Medical Centre at 1200 hours on 18 December 2003 he noted, “insp crackles to lower one third” and drew a diagram of the lungs with shading in the lower third of the lungs. Dr Lockwood in the notes of the two examinations that he conducted overnight on 18/19 December on both occasions noted “bibasal creps” with a similar diagram of the lungs with shading in the lower part of the lungs.
214 Associate Professor Richards explained in his evidence that pulmonary crepitation or crackles are “noises heard with the stethoscope applied over the
lungs and, whereas the movement of air without fluid does not cause those crackles, if there’s fluid there, that bubbles in the lungs and that’s heard as
crackles” (T 243). Indeed, Associate Professor Strathmore conceded that the presence of those crackles or crepitations in the base of the lungs by the time Mr McKay got to Monash suggested that there had perhaps been some progression or there was more fluid present (T 800). Moreover, Associate Professor Richards’ evidence was that by the time Dr Krafchek saw Mr McKay on 19 December 2003 he had noted amongst other things “mild wheezes”. He stated:
“The wheezes [are] a sign of cardiac failure. The wheezes are due to bronco-constriction which is a consequence of cardiac failure and, when there are wheezes there is reduced airflow. So there may now be not sufficient airflow to hear crackles because the wheezes are there. The fact that the wheezes are mild suggests that he’s not breathing sufficiently effectively to make a louder noise.” (T 322)
215 I consider that, overall, Associate Professor Richards’ evidence showed a more careful analysis of the documented signs and symptoms by the plaintiff, than that of Associate Professor Strathmore. Associate Professor Richards’ analysis demonstrates signs of progressive unwellness from the time Mr McKay saw Dr McPherson until the time he was last seen by a medical practitioner, Dr Krafcheck, prior to the asystolic arrest. Associate Professor Strathmore seems simply to have assumed that there was no such progression occurring. However, if one examines Associate Professor Strathmore’s evidence, he conceded that the plaintiff’s abnormal signs at Warley Hospital could signify cardiac failure (T 860) but he did not appear to be in severe heart failure (T 841). The chest x-ray taken on the Monday was indicative of heart failure (T 831). Then, by the time he got to Monash Medical Centre “he was in end stage cardiac failure in a way already” (T 877). I also note that Mr McKay’s jugular venous pressure was found to be elevated by three centimetres by the time he arrived at Monash, whereas Dr McCormick had found that it was not raised when he checked on Monday, 15 December.
216 The issue of fluid overload was not, however, confined to the lungs. In his evidence Associate Professor Richards explained the function of the heart. He described how blood returns from the body to the right atrium, which is the low pressure chamber, passes to the right ventricle, which pumps it through the lungs, where it is oxygenated, and then returns from the lungs to the left atrium and hence to the left ventricle which pumps it throughout the body, including to the branches of the heart muscle itself. He stated that cardiomyopathy usually affects predominantly the left ventricle, the main pumping chamber of the heart, but can involve all muscle parts of the heart. He stated that the physical manifestations of left heart failure include tachypnea or rapid breathing. This is a response to the fact that the lungs are not transferring oxygen normally, so oxygen saturation falls and one of the compensatory mechanisms to improve oxygenation is to breathe more rapidly. He stated that, in Mr McKay’s case, the echocardiogram performed on 19 December 2003 showed the left ventricle to be 73 millimetres in diameter which was very dilated compared to a normal diameter of about 55 millimetres (T 266). Further, the echocardiogram showed that the left atrial area was 30 centimetres square. He said that is very large and suggests fluid overload. Also, the inferior vena cava was shown to be 24 millimetres, which is very dilated (T 326).
217 In cross-examination Associate Professor Richards strongly rejected that the appearance on the echocardiogram was a function of the underlying heart muscle damage. He said that the enlargement of the left atrium was a by- product of fluid retention, as was the dilated vena cava, and that went with enlargement of the venous pulse in the neck. He stated that the echocardiogram report also pointed out that the right atrium appeared mildly dilated, so all of these features are of fluid retention within the heart and dilation of the veins draining into the heart. He explained that, if one adds extra fluid into somebody with heart failure it generally aggravates the heart failure. That is the reason why one treats heart failure, with restriction of fluids, diuretics and ACE inhibitors, like Coversyl. ACE inhibitors act as a vasodilator and tend to relax the blood vessels, lower the blood pressure and lower filling pressure. It is for these reasons that Associate Professor Richards believed that bed rest, restriction of fluids, diuretics and ACE inhibitors would most probably have made a difference to Mr McKay in that they would have treated his heart failure and allowed the damaged heart muscle caused by cardiomyopathy to recover.
218 In contrast, Associate Professor Strathmore’s evidence showed no close analysis. He was dismissive of the fact that diuretics would have made any difference but in justifying that stance he referred only to the evidence of the x-rays of the chest which were reported as showing no pleural fluid. He at no time focussed upon the fluid overload in the heart itself. He simply stated that it was his “understanding” that acute treatment by way of diuretics or ACE inhibitors did not reduce the risk of cardiac arrest in the short-term until the heart starts to recover (T 834). However, one wonders how the heart could be expected to recover if, like Mr McKay, one was left for five days with persistent tachycardia, rapid respiration and oxygen desaturation and not even prescribed bed rest.
219 Associate Professor Strathmore was alone in his view that the plaintiff’s levels of oxygen desaturation were not very bad. His oxygen saturation of 90 per cent on air in Warley Hospital had been described by Associate Professor Richards as significant embarrassment of gas exchange within the lung, as moderately serious by Dr Radford, as abnormal by Dr Chambers and as serious impairment of respiration by Dr Raftos, and normally an indicator of serious illness by Dr McCormick. Given that he does not accept that the oxygen desaturation levels, which became even lower at times in Monash Medical Centre (as low as to 88 and 86), were serious, it follows that Associate Professor Strathmore would not place a high premium on oxygen as a treatment. I do not accept his fundamental premise that throughout the days commencing 14 December 2003 Mr McKay’s oxygen saturation was not serious, in the light of the body of opinion to the contrary. Associate Professor Strathmore said oxygen would not have restricted the progress of the cardiomyopathy, rather it would have supplied his vital organs with oxygen, but not prevented the cardiac arrest leading to hypoxic injury. He did not explain why this was so, given that the vital organs needing to be supplied with oxygen include the heart muscle itself (my emphasis).
220 It seems to me that in giving his views Associate Professor Strathmore has not focussed upon the physical problems of tachycardia, rapid respiration and oxygen desaturation and the load that they put on Mr McKay’s damaged heart muscle in those days from Sunday 14 December 2003 onwards. Associate Professor Richards did focus upon the effects of those problems not being treated. He said that, even back on the Sunday, Mr McKay’s ejection fraction was probably closer to 10 per cent than 40 per cent. He was not suggesting that any treatment that might have been instituted any time after Sunday was necessarily going to fix the heart muscle problem. However, he said that by reducing fluids and starting ACE inhibitors you would fix the pressure problem and give Mr McKay’s body it’s own chance to start healing the heart muscle. Earlier treatment, including bed rest and oxygenation would improve oxygenation of the tissues generally, including the heart. He stated:
“In Warley hospital his oxygen saturation was lower than normal so oxygenation of tissues generally is impaired, including the heart, so that will aggravate whatever process was already present, because, now, in addition to the poor contraction of the heart, there is poor oxygenation of the heart through the heart failure and the stiff lungs due to the fluid in the lungs. Hypoxia will affect other organs as well, including the brain and the bowel and the liver, and ultimately will cause the multi-organ failure due to poor profusion of tissues generally.” (T 379-380)
221 Associate Professor Richards’ ultimate thesis was that on the balance of probabilities, had there been earlier treatment, the arrest would not have occurred. He said that, although the disease process itself, meant that it may have taken months and years for the heart muscle to return towards normal, earlier treatment would have reduced the tension in Mr McKay’s heart and the oxygenation of tissues generally would have been better than was the case. Thus, even if he had had an arrest, it was likely that he would have survived better with less consequences because he would have been better oxygenated for longer prior to the arrest.
222 It seems to me that the view espoused by Associate Professor Richards is, in fact, consistent with a statement made by Associate Professor Strathmore in the first of his two reports dated 11 March 2010. That statement on page 1 of the report is as follows:
“Cardiomyopathy is usually treated with fluid restriction or diuretics to reduce fluid accumulation in the lungs and in the peripheral tissues. Angiotensin Converting Enzyme inhibitors are given to reduce the load that the heart pumps against and so to improve the heart function. Although the causes of cardiomyopathy are still not clearly understood the treatment of cardiac failure from all causes, including cardiomyopathy, has improved dramatically over the last 15 years. This formerly had a high morbidity and mortality and patients also may have required cardiac transplantation. However, the prognosis is now much improved.” (My emphasis.)
223 It is difficult to see how, in the face of this statement, Associate Professor Strathmore can contend that “unfortunately he suffered this cardiac arrest
irrespective of the treatment that he would have received, because it was
related to the severe degree of damage of his heart muscle” (T 914-5). That opinion of Associate Professor Strathmore is not consistent with his previously described opinions expressed in his two reports dated 11 March 2010 (hard to be sure/not clear/not possible to say/possible but not probable). Later in his oral evidence he said it was “possible”, but he could not say “definitely”, that earlier treatment would have reduced the chances of having a cardiac arrest because treatment such as a diuretic or ACE inhibitor would not improve Mr McKay’s heart structure or function. He said, “It’s possible that it would have, but I don’t think its probable”. (T 917) Ultimately he stated, “with hindsight it
would have been better to referred him but I also am concerned that his
cardiac arrest wouldn’t have necessarily been averted” (T 926). (My
emphasis.)224 On the question of oxygenation, Associate Professor Strathmore stated: “I’m
not sure, that oxygen would have made that much difference to his actual
heart function”. He conceded that “it’s certainly possible” that it would have but “I’m not sure that oxygen alone makes that much difference to his heart function”. (My emphasis). The plaintiff does not contend that oxygen alone, but rather a combination of oxygen, bed rest, fluid restriction, diuretics and ACE inhibitors would have been effective treatment for his heart failure and most probably averted the asystolic arrest.
225 Dr Radford agreed with Associate Professor Richards in saying that the delay of a number of days meant worsening of the plaintiff’s oxygen saturation and that every day counts. He agreed that by the end of the week, shortly before his arrest, his oxygen saturations were worse than they had been. He agreed with Professor Richards that oxygenation improves the function of the cells of your heart, including the pacemaker cells in the heart, and makes the heart less irritable. Thus, he stated, had Mr McKay been given oxygen that has the effect of reducing the risk of an arrest. However, he added the qualification that treatment of cardiac failure might improve the prospects, but later down the track there could still be a cardiac arrest. He said that if one accepts that Mr McKay’s problem was not only the intrinsic disease of cardiomyopathy but was also caused or contributed to by the oxygen desaturation of the cardiac failure, then it is likely that earlier admission to hospital on the Monday would have prevented him from having the heart attack. In effect, he was saying that the physiological manifestations of the cardiac failure made the tendency of the heart to stop worse (T 716-717).
226 He considered that Mr McKay’s blood pressure of 128/110 documented by Dr McCormick on 17 December 2003 showed an unusually low difference between the systolic and diastolic pressure, called the pulse pressure. He said that this can be seen in cases of failure of the left ventricle of the heart, particularly in young people where the peripheral blood vessels can contract in an effort to maintain circulation to vital organs such as the brain (T 657). Indeed, he said that even the two Coversyl tablets, which appear to have been taken by Mr McKay after he was given them by Dr McCormick on the Wednesday, would have the effect of reducing his blood pressure. This might have enabled him to walk more easily by the time he got to Monash Medical Centre than he would have without having the Coversyl. Thus, he concluded that that medication, at least, arrested the deterioration and possibly improved it temporarily, although his symptoms probably related to whether he was upright or lying in bed (T 693-694).
227 Associate Professor Richards agreed that Coversyl would likely have reduced Mr McKay’s blood pressure and may well have contributed to the reduced blood pressure measured when he was admitted to Monash Medical Centre which was 130/90 compared with the 128/110 as measured by Dr McCormick on the Wednesday (T 420). Associate Professor Strathmore also conceded that Coversyl was the right thing to start with and it could have improved his breathing and oxygen saturation a bit and possibly enabled him to walk around a little. He said they certainly would have made some difference but he did not think it would have made that much difference if he was seriously unwell and seriously in heart failure (T 876).
228 It seems to me to accord with common sense that, if two tablets of the ACE inhibitor Coversyl were capable of making some difference to Mr McKay’s blood pressure on the Wednesday after he had been complaining of feeling worse, then, had he been referred on either the Sunday or the Monday and been prescribed an ACE inhibitor in combination with diuretics, fluid restriction and oxygen, it is probable the difference would have been very significant. This is particularly so given that on the Wednesday Mr McKay told Dr McCormick that he was “drinking more water of late”. On the evidence before me I am satisfied that this is a factor which is likely to have aggravated his condition of cardiac failure.
229 When Dr Radford was asked to focus upon the symptoms of cardiac failure manifested by Mr McKay from Sunday 14 December 2003 onwards, and to consider what treatment may have impacted upon them, as distinct from upon the underlying condition of cardiomyopathy, it seems that was when he changed his view from that which he had expressed in his report. He ultimately agreed with Associate Professor Richards’ view that, had earlier treatment by way of oxygen, diuretics and ACE inhibitors been instituted on either the Sunday or the Monday then probably the arrest would not have occurred.
230 Dr Radford adopted with no qualification various portions of Associate Professor Richards’ evidence. He said he agreed “absolutely” with Associate Professor Richards’ evidence as follows:
“So in Warley Hospital his oxygen saturation was lower than normal. So oxygenation of the tissues generally is impaired, including the heart. So that will aggravate whatever process was already present, because, now, in addition to the poor contraction of the heart, there’s poor oxygenation of the heart through the heart failure and the stiff lungs due to the fluid in the lungs. Hypoxia will affect other organs as well, including the brain and the bowel and liver and, ultimately, will cause the multi-organ failure due to poor [perfusion] of tissues generally.” (T 698)
231 Further, he said he agreed “absolutely” with the following statement of Associate Professor Richards:
“So on 14 December I think that is so remote from the 19th that it’s highly likely that there would have been plenty of time to make a diagnosis of cardiomyopathy and to intervene in a way that would have reduced the pressures in the heart and improve his oxygenation and reduced the risk of asystolic arrest.” (T 718)
232 He also agreed with Associate Professor Richards that on 15 December there would still have been plenty of time to intervene (T 718).
233 Dr Radford also agreed with Associate Professor Richards’ evidence that it was highly likely that, if intervention had occurred sufficiently sooner, back on 15 December, Mr McKay would not have likely had the arrest and, if he had, then he would have been in better shape to survive it and to recover more quickly than was the case. However, he did state that there was
“considerable inexactitude in determining the risk of whether he was going to have the arrest and also he had a particularly malignant form of cardiac arrest, cardiac asystole, which is difficult to resuscitate people from and more likely to
produce a brain injury and the like” (T 718).
234 In re-examination Dr Radford stated that even though there was no definite scientific data, “sober reflection” really says that, if Mr McKay had been hospitalised on the Sunday or Monday, probably the arrest would not have occurred. His reasoning was similar to that of Associate Professor Richards. He said that ACE inhibitors would be the mainstay of treatment, followed by diuretics which would be “directed towards reducing the congestion in the
lungs and then improving the oxygenation, and perhaps by reducing the
volume of the heart, reducing the pressures inside the heart” (T 743). He thought every reasonable doctor would have given that treatment with that aim in mind (T 744). He went on to say that the reason the arrest probably would have been avoided is because “acute treatment is directed towards
making sure the patient does not die of acute heart failure in the early period
after diagnosis” so that “you can stabilise the patient and then address the longer term of treatment” (T 747). This seems to be exactly the point made by Associate Professor Richards which he said “when people have heart failure, we treat them, and the reason we treat them is to make them better” (T301).
235 It is not incumbent upon the plaintiff to establish with exactitude or certainty that, had he been referred to hospital on either 14 or 15 December and been treated for heart failure, that it would have prevented the asystolic arrest which he suffered on 19 December. The relevant standard is on the balance of probabilities.
236 Under s.51(1)(a) the plaintiff must satisfy me that the negligence of Dr McPherson and Dr McCormick was a necessary condition of the asystolic arrest and the consequent neurological harm that he suffered. In Adeels Palace Pty Ltd v Moubrak & Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009) the High Court had to apply s.5D(1)(a) of the Civil Liability Act 2002 (NSW) which is in identical terms to s.51(1)(a) of the Wrongs Act 1958 (Vic). The Court held that the provision that a plaintiff must establish that negligence was a necessary condition of the occurrence of harm was an enactment of the common law “but for” test of factual causation. Hence, in order for the plaintiff to succeed, I must be satisfied on the balance of probabilities that, but for the delay in the plaintiff receiving treatment in hospital for cardiac failure caused by the defendants’ negligence, the asystolic arrest would not have taken place.
237 Mr Brookes on behalf of the defendants submitted that Associate Professor Richards, with whom Dr Radford ultimately agreed, used language which really showed that all that had been lost by the plaintiff was a chance of a better outcome. Certainly, Associate Professor Richards did say that the sooner that bed rest, oxygen, fluid restriction and diuretic therapy were instituted, the lesser would have been the dilation of the heart and the less would have been the chance that Mr McKay would have had a cardiac arrest (T 280). He also said that the sooner management for cardiac failure had been commenced the sooner the risk of asystolic arrest would have been reduced (T 296). However, I do not find that the use of such language means that this case amounts to a “loss of a chance” case as the defendants seek to categorise it.
238 I found Associate Professor Richards to be a careful and convincing witness in the way he described how simple bed rest, reduction of fluids, diuretics, supplementary oxygen and ACE inhibitors, if administered following the plaintiff’s hospitalisation on 14 or 15 December, would probably have fixed the pressure problem which caused the plaintiff’s heart failure, albeit that they would not have fixed the underlying heart problem. I accept that although there was still a risk that Mr McKay could have had an asystolic arrest even if treatment had been instituted, I am satisfied that it is more probable than not that it would not have occurred. This is because by addressing the cardiac failure, the extra workload on the defective heart is lifted. The fact of the matter is that Mr McKay did not have an asystolic arrest on 14, 15, 16, 17 or 18 December 2003. During all of that time I am satisfied that his condition was deteriorating by reason of impaired oxygenation and retention of fluid, particularly in the left side of his heart.
239 In my view, Associate Professor Richards and Dr Radford grappled in a superior way to Associate Professor Strathmore with the whole picture presented by the plaintiff’s symptoms. Associate Professor Strathmore’s views on causation were coloured by his circular logic that the plaintiff cannot have looked very unwell, otherwise Dr McPherson, Dr McCormick or one of the doctors at Monash Medical Centre would have ordered treatment sooner. He thus reasoned that the asystolic arrest was an unanticipated event which could probably not have been prevented. He made statements like “I don’t think you would have treated tachycardia just on its own” (T 798). Yet it is clear that from Sunday onwards the tachycardia was not an isolated symptom but coupled with a rapid respiratory rate, oxygen desaturation and abnormal blood pressure. Also, Associate Professor Strathmore has stated that “shortness of breath was clearly not a major feature of this illness” (the second of his two reports dated 11 March 2010, Exhibit “8”, adopted in his oral evidence). This is plainly wrong. He further stated that Mr McKay’s oxygen saturation was not that bad, contrary to all other doctors who gave evidence on that point.
240 Associate Professor Strathmore failed to give appropriate weight to the entirety of the plaintiff’s presentation which I find from 14 December onwards demonstrated signs of heart failure, particularly left-sided heart failure. He did not impress me with his objectivity and careful analysis in the way Associate Professor Richards did. For these reasons, I prefer the evidence of Associate Professor Richards and Dr Radford to that of Associate Professor Strathmore.
241 I am satisfied that had Mr McKay been admitted to hospital on either 14 or 15 December 2003 with a referral which made it clear that he was suffering hypoxia, tachypnoea, tachycardia and abnormal blood pressure since 14 December, it is more probable than not that an echocardiogram would have been conducted by late afternoon or the evening of 15 December 2003. That would have revealed Mr McKay’s cardiomyopathy, and treatment by way of oxygen, fluid restriction, diuretics and ACE inhibitors would have been commenced some time on the evening of 15 December or by the morning of 16 December at the latest. That such treatment would most likely have been given is supported by the fact that fluid restrictions and a diuretic, Lasix, were prescribed by Dr Krafchek on the morning of 19 December after the echocardiogram but, unfortunately, it appears that the plaintiff’s asystolic arrest occurred before these measures could be put in place. The ACE inhibitor, Coversyl, also appears to have been prescribed by Dr Lockwood at some time that morning, but it would appear from the drug chart that only one dose was given before the arrest. I am satisfied that such treatment probably would have relieved the symptoms of cardiac failure and, hence, the aggravation of the underlying cardiomyopathy and thereby averted the asystolic arrest. I am thus satisfied on the balance of probabilities that, but for the first defendant’s negligence on 14 December and but for the third defendant’s negligence on 15 December, in failing to recognise how ill the plaintiff was and to refer him immediately for admission to hospital, the plaintiff would not have suffered the asystolic arrest and consequent brain damage on 19 December 2003.
242 I cannot agree with the defendants that the weight of the evidence is such that the plaintiff has established no more than that treatment may have made a difference rather than probably would have prevented the arrest. I do not find this to be a loss of chance case. I cannot see how it is comparable to the case of Tabet v Gett [2010] HCA 12 (21 April 2010). That case involved the appellant claiming that the respondent’s negligence had deprived her of a prospect or opportunity of avoiding a percentage of her disabled state due to a brain tumour. The alleged opportunity remained open for a very short period between 11am on 13 January 1991 and the following day, when she suffered a seizure and deterioration. Unlike the appellant in that case, the plaintiff here had two doctors fail to recognise how serious his symptoms were. As a consequence, he was denied effective treatment for heart failure for five days and his underlying condition of cardiomyopathy was thereby aggravated and he suffered the asystolic arrest.
243 Gummow ACJ in paragraph 31 of his judgment in Tabet stated:
“If the likelihood of a better outcome had been found to be greater than 50% then on the balance of probabilities the appellant would have succeeded, not failed, on the main branch of her case in negligence.”
244 In my view the plaintiff in this case has established what the appellant in Tabet v Get failed to establish. I am satisfied that the factual causation required to be proved on the balance of probabilities by the plaintiff has been achieved and that the defendants’ negligence was a necessary condition of the occurrence of the harm, namely the asystolic arrest leading to neurological damage. I thus find it unnecessary to consider whether any lesser factual causation has been made out or whether the defendants’ negligence materially increased the risk of asystolic arrest.
245 Pursuant to s.51(3) I find on the balance of probabilities that had Dr McPherson not been negligent, then the plaintiff would have been transferred to hospital such as Monash Medical Centre on 14 December 2003. I also find on the balance of probabilities that had Dr McCormick not been negligent then the plaintiff would have been transferred to a hospital such as Monash Medical Centre on 15 December 2003. I make this determination in the light of all the relevant circumstances, namely, that the plaintiff followed all directions given to him by each of the defendants and it is probable that he would have followed their directions had they indicated that he should be transferred to hospital on 14 or 15 December 2003. In particular, I find that the plaintiff followed Mr McPherson’s directions to remain at Warley Hospital to be observed until such time as he was considered by Dr McPherson to be fit for discharge. He also followed Dr McPherson’s advice to attend the Bass Coast Medical Centre should his symptoms worsen. The plaintiff also followed Dr McCormick’s advice to undergo an x-ray, to re- attend his rooms on 17 December, to undertake blood tests, and to be transferred by ambulance to Monash Medical Centre on 18 December.
246 Section 51(1)(b) requires that I be satisfied that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.
247 Section 51(4) states that for the purpose of determining the scope of liability in accordance with s.51(1)(b) the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. The Wrongs Act 1958 (Vic) itself provides no enlightenment on what is meant by the scope of liability provision in s.51(1)(b). The explanatory memorandum which was circulated before this provision was inserted in the Wrongs Act by amendment in 2003 simply states that: “‘Whether and why responsibility for the harm should be imposed on the
negligent party’ is a value judgment”.
248 In written submissions on the Wrongs Act provisions, counsel for the defendants stated in relation to the scope of liability, that in the event that the Court found that there was negligence and that that negligence was a necessary condition of the occurrence of harm sustained by the plaintiff then
“the defendants do not contest that the scope of liability limb of the statutory test for causation in s.51(1)(b) is satisfied in this case and merely put the plaintiff to his proof on the issue”.
249 Paragraph 13 of the plaintiff’s written submissions states:
“To suggest that the scope of the medical practitioners’ negligence in this case did not extend to the catastrophic acquired brain injury suffered by the plaintiff would be contrary to the legislative intent as set out in the second reading speech – ‘the bill establishes in statute general principles that generally already form part of the common law in determining whether a duty of care exists and the extent of that duty.’ (Assembly Hansard page 1422)”
250 The plaintiff’s written submissions went on in paragraph 16 to consider the position if the defendants had argued that the scope of the defendants’ negligence should not extend to the harm so caused because of alleged inactivity by the staff at Monash Medical Centre. Although that argument was put on the issue of factual causation, and I have rejected it, it has not been put by the defendants on the issue of scope of liability. Indeed, although I might agree with Associate Professor Richards that the echocardiogram should have been carried out sooner at Monash Medical Centre I could not possibly make any finding of negligence without representations being made on behalf of Monash Medical Centre. In any event, the window of opportunity with which Monash Medical Centre was presented for effective treatment was very narrow indeed compared to that existing at the time of Dr McPherson’s management and Dr McCormick’s management. Moreover, the situation with which Monash Medical Centre was confronted was more complicated than on 14 or 15 December because the patient was sicker, a vague historian and they did not have available to them the information that he had been suffering from hypoxia, tachycardia, an abnormally high respiratory rate and abnormal blood pressure since 14 December. I find no reason why responsibility for the harm should not be imposed on the negligent defendants.
251 Accordingly, having found that the plaintiff has established that the defendants’ negligence was a necessary condition of the occurrence of the harm suffered by him and that it is appropriate for the scope of the negligent defendants’ liability to extend to harm so caused, I find that there should be judgment for the plaintiff against both defendants.
252 I will hear from the parties as to agreement on quantum and on the question of costs.
- - -
0
2
0