Mules v Ferguson
[2015] QCA 5
•6 February 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Mules v Ferguson [2015] QCA 5
PARTIES:
NANCY LEANNE MULES
(appellant)
v
KAYLENE JOY FERGUSON
(respondent)FILE NO/S:
Appeal No 3754 of 2014
SC No 339 of 2011DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at CairnsDELIVERED ON:
6 February 2015
DELIVERED AT:
Brisbane
HEARING DATE:
26 September 2014
JUDGES:
Margaret McMurdo P, Applegarth and Boddice JJ
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Boddice J concurring as to the orders made, Applegarth J dissentingORDERS:
1. The appeal be allowed.
2. The judgment and orders entered below be set aside.
3. Instead, judgment be entered for the appellant, in the amount of damages assessed by the trial judge, together with interest thereon.
4. The parties have leave to make submissions as to costs in accordance with Practice Direction 3 of 2013, para 52. If no submissions are made within seven days, the respondent pay the appellant’s costs of the trial, and of this appeal, to be assessed on the standard basis.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – GENERAL PRINCIPLES – where the appellant was diagnosed on 26 September 2008 with cryptococcal meningitis, sustaining devastating personal injuries, including the loss of her sight and hearing – where the appellant brought an action in negligence against her general practitioner claiming the doctor did not undertake a proper examination or make proper enquiries as to the appellant’s reported symptoms so as to exclude this disease – where the appellant contended that had the doctor acted competently, the respondent would have referred the appellant for tests and treatment so that the disease was diagnosed and treated before she suffered her grievous injuries – where, after an 11 day trial, the primary judge assessed the appellant’s damages at over $6.7 million but dismissed her claim – where the central focus on appeal was whether the appellant ought to have been referred for specialist assessment by the respondent at the time of her consultations on 18 or 19 of September, and whether such a referral would have led to a diagnosis and commencement of treatment before the onset of the appellant’s catastrophic injuries – whether there was evidence the appellant had an observable restricted range of movement of the neck by 18 September 2008 – whether testing movement in all directions during a physical examination was likely to have revealed difficulty in movement such as to warrant further investigation by means of specialist referral – whether the appeal should be allowed
TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – GENERALLY – where s 22 of the Civil Liability Act 2003 (Qld) provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field – where the trial judge found that the respondent’s conduct at the consultations on 18 and 19 September 2008 met this standard – where the trial judge’s finding was based on an acceptance of the opinions of two general practitioners that the respondent’s management of the appellant’s case was consistent with a reasonable standard of general practice – where the opinions of the two general practitioners were based on facts consistent with the respondent’s version of events – where the facts as found by the trial judge were not entirely consistent with the respondent’s version of events – whether the respondent had discharged her onus under the Act
Civil Liability Act 2003 (Qld), s 22
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Hunter and New England Local Health District v McKenna (2014) 89 ALJR 39; [2014] HCA 44, cited
McKenna v Hunter and New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476, cited
Mules v Ferguson [2014] QSC 51, relatedCOUNSEL:
S Doyle QC, with R Lynch and A Katsikalis, for the appellant
G Diehm QC with J Trevino, for the respondentSOLICITORS:
Shine Lawyers for the appellant
K & L Gates for the respondent
MARGARET McMURDO P: The appellant, Nancy Leanne (Lee) Mules, consulted her general practitioner, the respondent, Dr Kaylene Joy Ferguson, about neck pain on 12, 18, 19 and 25 September 2008. Following the final consultation, she was admitted to the Cairns Private Hospital on a referral from Dr Ferguson. The next day she was diagnosed with cryptococcal meningitis, a disease which left her blind, deaf and with other grievous disabilities. She brought an action in negligence against Dr Ferguson claiming that the doctor did not undertake a proper examination or make proper enquiries as to Ms Mules' reported symptoms so as to exclude cryptococcal meningitis. She contended that had the doctor acted competently, she would have referred Ms Mules for tests and treatment so that the disease was diagnosed and treated before she suffered her grievous injuries.
After an 11 day trial, the primary judge assessed Ms Mules' damages at over $6.7 million but dismissed her claim. Although his Honour found Dr Ferguson failed to act with reasonable care and skill in not physically examining Ms Mules' neck and enquiring about the progress of her previously recorded symptoms of headache and facial flushing, the judge concluded that this breach did not cause her injuries. Such an examination and enquiries would not have detected anything to prompt Dr Ferguson, exercising reasonable care, to respond differently.[1] His Honour also found that Dr Ferguson's conduct was lawful because it came within the defence provision contained in s 22 Civil Liability Act 2003 (Qld). In Ms Mules' favour, the judge found that, had Dr Ferguson referred Ms Mules to a neurologist or specialist physician on 18 and 19 September, Ms Mules would have arranged and attended a specialist appointment by or on Monday, 22 September. With proper care she would have been diagnosed and treated by 23 September[2] and her grievous injuries would probably have been prevented.[3]
[1]Mules v Ferguson [2014] QSC 51, [269].
[2]Above, [289].
[3]Above, [287], [289].
In this appeal, Ms Mules contended the judge erred first, in finding that Dr Ferguson's breach of care was not causative of her injuries and, second, in finding that the doctor had a defence under s 22.
Dr Ferguson supports the findings challenged by Ms Mules in this appeal. Further, in a notice of contention Dr Ferguson argued first, that the judge erred in finding any breach of duty on her part and second, that, had Dr Ferguson referred Ms Mules to a specialist on 18 or 19 September, it was unlikely that cryptococcal meningitis would have been diagnosed and treated so that Ms Mules would have suffered her grievous injuries in any case.
I agree with Boddice J's reasons for rejecting Dr Ferguson's arguments, allowing this appeal, setting aside the judgment below and instead giving judgment for Ms Mules. I add the following observations relevant to the first contention in this appeal.
It is true that most of the symptoms Ms Mules reported to Dr Ferguson on 12, 18 and 19 September were consistent with cervical spondylosis; that Ms Mules had a history of such injury; and that the CT scan of her neck on 18 September disclosed such an injury capable of causing most of the symptoms she described. Her reported symptom of facial flushing, however, is not associated with cervical spondylosis[4] and her reported symptoms of headache and neck stiffness were also possible symptoms of cryptococcal meningitis.[5]
[4]Above, [113].
[5]Above, [9]; Dr Eisen T7-37, AB 354 and ex 2, Dr Eisen's report 22 December 2009, 3, AB 705; ex 2, Dr Vinen's report of 8 February 2010, 17, AB 819.
General practitioner Dr Kable's opinion, noted by his Honour, that neck stiffness is a late symptom in the course of meningitis[6] was not supported by the evidence of either specialist physician in internal medicine and infectious diseases and pathologist, Dr Michael Whitby,[7] or consultant infectious diseases physician, Associate Professor Damon Eisen.[8]
[6]Mules v Ferguson [2014] QSC 51, [237].
[7]Above, [238].
[8]Ex 15, p 3, AB 1423.
It is also true that cryptococcal meningitis is a rare, insidious infection, although significantly less rare in tropical Australia where Ms Mules lived and Dr Ferguson practised. Its symptoms may not arise early in the course of the infection so that often it is diagnosed late.[9] The symptom of neck stiffness in cryptococcal meningitis is present when a neck examination reveals the patient is unable to flex the neck forward so the chin touches the chest.[10] Delay in diagnosis and treatment, as this case sadly demonstrates, can have dreadful effects on morbidity and mortality, so that cryptococcal meningitis is a condition which is emphasised in clinical teaching for general practitioners[11] and should be excluded by specialist referral when diagnosing and treating patients suffering from possible symptoms.[12]
[9]Mules v Ferguson [2014] QSC 51, [8].
[10]This flexion test was depicted in the DVD tendered as ex 24.
[11]Mules v Ferguson [2014] QSC 51, [12]; ex 2, Dr Whitby's report, 11 January 2011, 6, AB 734.
[12]Mules v Ferguson [2014] QSC 51, [220].
The judge found that on 18 and 19 September Dr Ferguson breached her duty of care by not physically examining Ms Mules' neck and enquiring further about her previously reported symptoms of headache and facial flushing. There was no real doubt that Ms Mules' symptoms worsened between her first consultation with Dr Ferguson about neck pain on 12 September and the critical consultations on 18 and 19 September. This conclusion was supported by Ms Mules' visits to both the chiropractor, Mr Collis, and Dr Ferguson; Ms Mules inability to remain at work on 17 September; Mr Collis' provision of a medical certificate from 17 to 21 September; Dr Ferguson's provision of a medical certificate from 19 to 26 September; and the fact that Ms Mules' mother cancelled a flight and holiday plans to move in with and care for her forty-three year old daughter on 19 September.[13]
[13]T7-54 to T7-55.
Much emphasis was placed in this appeal on whether the primary judge's observation that no-one gave evidence of observing Ms Mules holding her neck stiffly or without movement[14] was inconsistent with Dr Ferguson's notes of and evidence about Ms Mules' consultation on 18 September. Earlier in his reasons, his Honour correctly referred to the evidence that Ms Mules told Dr Ferguson that her neck remained painful and Dr Ferguson observed that Ms Mules had a reduced range of movement.[15] His Honour found that his conclusion that there was no evidence of Ms Mules holding her neck stiffly or without movement was supported by the evidence of Mr Collis; his manipulation of Ms Mules' neck on 17 September; and her treatment by physiotherapist, Mr Elsmore, on 23 September.[16] This led his Honour to reason that, had Dr Ferguson physically examined Ms Mules on 18 or 19 September, the doctor would not have detected neck stiffness suggestive of meningial irritation and would reasonably have continued to conclude that Ms Mules' symptoms had a musculo-skeletal cause.[17]
[14]Mules v Ferguson [2014] QSC 51, [239].
[15]Above, [101], [109], [110].
[16]Above, [239].
[17]Above, [239].
Dr Ferguson contended in this appeal that the judge clearly intended to state that the evidence of Mr Collis and Mr Elsmore, to which his Honour referred, supported the conclusion that there was no evidence of Ms Mules holding her neck stiffly in a way symptomatic of cryptococcal meningitis and that this conclusion was correct. That reasoning has some initial attraction. I accept the judge probably did intend to state that there was no evidence of Ms Mules holding her neck stiffly in a way symptomatic of cryptococcal meningitis. But in my respectful view that conclusion was not supported by a close examination of the relevant evidence.
Mr Collis gave evidence that he had no independent recollection of his treatment of Ms Mules and his recollection depended on "trying to read and decipher [his] handwriting".[18] He first treated her on 5 September. He described performing "pseudohaul" where he "grabbed the back of her head, put it forward. In other words, we're putting some traction on the cervical spine and the cord and that caused pain to T1."[19] The last occasion he treated her was on 17 September when her neck was still sore and she had a headache.[20] He gave no oral evidence and nor was there evidence in his records[21] as to the nature of any treatment on 17 September. There was certainly no evidence that, on 17 September or indeed on any occasion, he conducted the chin on chest neck examination likely to disclose the symptom of neck stiffness often present in sufferers of cryptococcal meningitis.
[18]T7-43, AB 360.
[19]T7-46, AB 363.
[20]T7-48, AB 365.
[21]Ex 4a item 3, AB 1170-1176.
The evidence of physiotherapist, Mr Elsmore, also warrants careful attention. He treated Ms Mules on 23 September. He recalled that she was distressed[22] but without the benefit of his notes had no particular recollection of the consultation.[23] She gave him a history of increasing pain over the past two weeks which was better when she lay flat on her back.[24] She was "protecting of movement" and "just wasn't moving her neck very much at all".[25] Whilst she was supine he would have turned her head 90 degrees to each side and held it there for 30 seconds. He relevantly added,
"We tried traction with passive flexion, so that's when the patient lies on her back and we provide a traction force to the neck …
So traction – again, the patient's lying in supine. The base of their occiput sits on your forearm, your fingers under their chin, you roll your forearm back this way and you apply traction force when they're just lying there. The counter force is just their body weight, and just apply a gentle force to it. You do a test of about five seconds and then you let it go, make sure there's no massive increase in symptoms which would indicate a pinched nerve. Let it go and then repeat again. You'd hold it for 30 seconds at a time and probably do three lots of that and see how you go."[26]
[22]Mules v Ferguson [2014] QSC 51, [155].
[23]Above, [155]; T9-61, AB 535.
[24]T9-63, AB 537.
[25]T9-64, AB 538.
[26]T9-64 to T 9-65, AB 538-539.
Mr Elsmore thought she seemed to respond reasonably well from what he remembered.[27] He agreed that his note recorded "traction and passive flexion". He explained "passive flexion is just when you – when you roll your forearm back like this with your fingers under [the] chin then the head will fall into passive flexion".[28] It is clear that his description of the "traction and passive flexion" which he applied was not the chin on chest neck examination likely to disclose the type of neck stiffness which is a common symptom of cryptococcal meningitis. He recommended and supplied Ms Mules with a cervical collar.
[27]T9-65, AB 539.
[28]T9-65.
Contrary to his Honour's view,[29] the evidence of the chiropractic treatment on either 5 or 17 September and the physiotherapy treatment on 23 September was not of a kind which would have detected neck stiffness suggestive of meningial irritation. It did not establish that a chin on chest neck examination on 18 or 19 September would have disclosed no neck stiffness symptomatic of cryptococcal meningitis.
[29]Mules v Ferguson [2014] QSC 51, [239].
Dr Ferguson placed considerable weight in this appeal on his Honour's acceptance of the evidence of Dr Whitby as to the effect of the physiotherapist's evidence.[30] In questioning Dr Whitby, Dr Ferguson's counsel summarised the physiotherapist's evidence as to his treatment of Ms Mules on 23 September and asked whether a neck flexion test for meningism would have been informative on or about 23 September. Dr Whitby responded:
"The cause of neck stiffness, meningism, in infections of the coverings around the brain is that the coverings around the brain become inflamed, and therefore it's painful to move the neck and therefore patients resist movement, because it hurts. And so I would think if the physiotherapist felt there was reasonable movement, it's not consistent with significant inflammation of the coverings around the brain, and it would suggest that that sign wasn't there."[31]
[30]Above, [234].
[31]T10-26, AB 592.
Ms Mules' counsel also pursued the issue in cross-examination. Dr Whitby stated:
"In terms of whether stiffness was present, the stiffness in inflammation of the coverings around the brain from infection is not a passive thing. It's an active thing. And so that pain and resistance to movement is going to be there no matter how you test it. If you ask the patient to actively put their chin on their chest, they can't do that, and that's the common sign that's used. You can also ask the patient to straighten their leg, and that will cause pain, not necessarily in the neck, but sometimes in the neck, and cause them to arch their neck forward. Alternatively, you can just try and actively move the neck forward. They can't do that either. It's not a voluntarily (sic) movement in meningitis. It's a passive thing. So if the patient could move her neck forward actively or passively, then that's not consistent with inflammation of the coverings around the brain and the neck."[32]
[32]T10-26, AB 592.
When the judge asked Dr Whitby what he meant when he said Ms Mules could move her head passively, Dr Whitby responded:
"Passive movement means that the examining person is actively trying to move it. Active movement, ask the patient to do it. If the patient can't do it, you try and force it by doing it yourself. That's therefore passive movement."[33]
[33]T10-27, AB 593.
The transcript of the physiotherapist's evidence was not read to Dr Whitby and his answers suggested he did not appreciate its real effect. The physiotherapist's evidence was not that Ms Mules had reasonable neck movement without pain. Indeed he stated that she was "protecting of movement" and "just wasn’t moving her neck very much at all."[34] And nor did the physiotherapist give evidence of Ms Mules' head being moved forward chin to chest, either actively by her or passively by him. Rather, the physiotherapist applied gentle force by pulling Ms Mules' neck laterally, or by turning it from side to side while she lay on her back. He did not perform the forward flexion chin on chest test associated with the detection of symptomatic neck pain in cases of cryptococcal meningitis. Further, the physiotherapist's recommendation and supply of a cervical collar was inconsistent with Ms Mules having a sound range of forward flexion in her neck.
[34]T9-64, AB 538.
His Honour also referred to Dr Cameron's opinion as to the effect of the physiotherapist's evidence.[35] In re-examination Dr Ferguson's counsel asked Dr Cameron:
"There's evidence before his Honour that on the 23rd of September … the physiotherapist, having received Ms Mules' complaints about neck pain … performed therapy in the form of traction and passive flexion … Are you able to say with your understanding of what that – that involves, whether that sheds any light on the question as to what might have been revealed by a neck examination, with respect to a diagnosis of meningitis the next day? --- It's just an odd finding to me. If the patient can tolerate neck flexion and also neck traction with meningial irritation – it's an odd response. One would have imagined that would have aggravated her symptoms at the time or she – or the therapist would not have been able to actually do it without complaint. It probably is a bit misleading to the docs in that she gained some benefit from that. I don't know how she would've, but it would tend to make one think more of a cervical spondylosis at the time as the cause of pain, which it obviously wasn't. If a physiotherapist could produce neck flexion it mustn't have been – her neck problem must not have been particularly troublesome at that time. I mean, I'm not in the room to see the extent it was flexed and all that type of stuff, but the mere fact it's mentioned means it was able to be done, which is a little unusual, without causing hardship." (errors in the original)[36]
[35]Above, [236].
[36]T10-20 to T10-21, AB 586-587.
In further cross-examination Dr Cameron agreed with Ms Mules' counsel that it was difficult to comment without knowing exactly what physiotherapy was performed. Counsel asked Dr Cameron to assume that the physiotherapist only treated Ms Mules on the one occasion on 23 September; his only recollection was that she was distressed; and that he performed the treatment whilst she was lying on her back. Counsel asked
"… Is that additional information further assist (sic) you in ascertaining whether, on the [24th] of September, if a patients flexion had been examined at the hospital, whether that would have elicited some symptom of meningism?"
Dr Cameron responded that unless he actually saw the examination it was hard to comment.[37]
[37]T10-23, AB 589.
In my view, a thorough review of the evidence of Mr Elsmore, Dr Whitby and Dr Cameron does not support the conclusion that had Dr Ferguson examined Ms Mules' neck by performing the chin on chest test on 18 or 19 September, she would not have detected neck stiffness suggestive of meningial irritation. Rather, for the reasons detailed by Boddice J, particularly as it is now uncontentious that she had cryptococcal meningitis at this time, such an examination was likely to have revealed an inability to place her chin on her chest. This, combined with her history of headaches and facial flushing and her prolonged distressed and deteriorating condition since 5 September required Dr Ferguson, acting reasonably, to refer Ms Mules to a neurologist or specialist physician so as to exclude the possibility of her having the insidious and most serious disease of cryptococcal meningitis. Ms Mules was plainly keen to alleviate her prolonged distress and had conscientiously attended various medical and health practitioners since 5 September. As his Honour found, she would have attended a specialist by Monday, 22 September and her cryptococcal meningitis would likely have been diagnosed and treated by 23 September, preventing the grievous injuries she has suffered.
I agree with the orders proposed by Boddice J.
APPLEGARTH J: I have had the advantage of reading the reasons of Boddice J, which describe the background to the appeal, the parties’ submissions and the issues. It is unnecessary for me to repeat these matters.
Were the breaches causative of injury and loss?
The principal issue in this appeal is whether the exercise of reasonable care and skill by the respondent on 18 and 19 September 2008 would have led her to recognise the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, rather than the musculo-skeletal disorder from which the appellant was apparently suffering. If so, then the potential condition would have been of sufficient seriousness to warrant referral for urgent specialist assessment. On the basis of the primary judge’s findings, there would have been just enough time for a diagnosis and treatment for cryptococcal meningitis to avoid permanent damage to the appellant’s health.
Background
The primary judge’s description of cryptococcal meningitis is an essential point of reference:
“[6] Cryptococcal meningitis is an extremely rare infection that most general practitioners will never see during their practising life. In Australia it is more common in the tropical north but even there only about 20 cases per million people occur per year.
[7]Cryptococcal meningitis is a form of fungal infection of the meninges, the tissue membranes that protect and enclose the brain and spinal cord. It is caused by infection of the lung by a yeast, cryptococcus neoformans, which then spreads though the blood stream to the brain causing meningitis.
[8]Its onset is more insidious and gradual than bacterial meningitis. While its onset can sometimes be rapid, the symptoms of cryptococcal meningitis typically develop over a period of at least two to four weeks. However in that period symptoms may not be sufficiently present to be recognised. It is frequently not diagnosed in the early presentation of a patient because it is a chronic low-grade inflammatory disturbance until the later stages of the illness.”[38]
[38]Mules v Ferguson [2014] QSC 51 at [6]-[8] (references omitted).
The classical features of meningitis include:
1. raised temperature
2. neck stiffness with the patient unable to flex their neck forward so that their chin touches the chest
3. chronic headache
4. aversion to light
5. nausea and vomiting.
The appellant had a history of musculo-skeletal conditions and sought treatment from a chiropractor on 5, 8 and 11 September 2008. She consulted the respondent on 12 September, who advised her to take simple analgesia and seek other treatment.[39] The appellant saw her chiropractor on 12, 15 and 17 September, before consulting the respondent again on 18 September, when a CT scan was ordered. It detected irregularities with the appellant’s cervical spine. On 19 September, on the basis of her observations and the report of the CT scan, the respondent diagnosed the appellant’s problem as musculo-skeletal and prescribed additional medication for pain relief.
[39]The appellant’s recollection was that the recommendation was to continue with chiropractic treatment; the respondent’s recollection was of recommending physiotherapy.
The primary judge’s comprehensive review of the evidence concluded that at the time of the respondent’s consultations with the appellant on 18 and 19 September the appellant:
“(a)had continuing neck pain;
(b)exhibited in her presenting demeanour a reduced range of movement of her neck;
(c)was sometimes experiencing dizziness;
(d)was sometimes experiencing headaches which appeared to be connected with her neck pain;
(e)was sometimes experiencing flushing to the face which appeared to be connected with her neck pain.”[40]
[40]Mules v Ferguson [2014] QSC 51 at [208].
Two of these symptoms, neck stiffness and headache, are relevant to the potential presence of cryptococcal meningitis. However, the appellant’s headache was intermittent, not the chronic headache which the expert evidence described as a classic feature of meningitis. The primary judge found that the appellant did not report to the respondent symptoms of nausea and vomiting, aversion to light or raised temperature.
The primary judge concluded, correctly in my view, that the exercise of reasonable care and skill by the respondent required her to additionally:
· physically examine the appellant’s neck on 18 September;[41]
[41]At [232].
·inquire about the appellant’s past reported symptoms of headache and facial flushing associated with her neck pain.[42]
[42]At [112].
If she had done so, then, according to the primary judge’s findings, the respondent:
·would not have detected neck stiffness suggestive of meningeal irritation, and the physical examination would not have caused the respondent “to suspect the presence of a symptom with a cause any more sinister than a musculo-skeletal cause”;[43]
·would have ascertained that the appellant experienced intermittent headache towards the lower back of the head, consistent with its reported associated neck pain and a musculo-skeletal cause; and inconsistent with the type of constant headache associated with cryptococcal meningitis.[44]
[43]At [239].
[44]At [246]-[247].
A critical issue on the appeal is whether the primary judge erred in concluding that a physical examination “would not have detected neck stiffness suggestive of meningeal irritation”[45] and that further inquiry about past symptoms of headache and facial flushing “would not have detected anything that would have prompted a different course than that taken”.[46] The primary judge concluded that the appellant “did not as at 18 or 19 September have a discernable collection of symptoms which should have caused the [respondent], acting with reasonable care and skill, to conclude that she should refer the [appellant] for urgent or specialist assessment”.[47]
[45]At [239].
[46]At [269].
[47]At [268].
The omission on those days to physically examine the neck and to enquire about headache and facial flushing was found not to have made a difference to the outcome. The examination and further enquiry would not have caused the respondent to detect a symptom “with a cause any more sinister than a musculo-skeletal cause”[48] and to recognize that a potentially serious central nervous condition may have been developing.[49]
[48]At [239].
[49]At [269].
The appellant failed to prove a causative breach of duty.
Would a neck examination and further enquiry about headaches have made a difference?
The appellant contends that the primary judge erred in concluding that a physical examination of the neck and further inquiry about headaches and facial flushing would not have prompted a different course than that taken. The main causal issue is the cumulative effect of the breaches: what the respondent would have thought and done if she had both undertaken the neck examination and asked whether the appellant was still experiencing headaches and facial flushing. However, it is convenient to consider the two matters in turn.
Neck stiffness suggestive of meningeal irritation
The term neck stiffness was used in the evidence. Depending upon its context it referred to two different things:
(a) a restriction in the movement of the neck and head indicating a reduced range of movement;
(b) neck stiffness suggestive of meningeal irritation.
For example, Professor Eisen referred to a reduced range of movement of the neck as neck stiffness, and the chiropractor Mr Collis found that the appellant had a restricted range of movement when he examined her, initially on 5 September 2008. Neck stiffness in the sense of a reduced range of movement did not prevent the chiropractor from performing manipulation on the appellant’s cervical spine on later dates.
Neck stiffness in that sense may be distinguished from neck stiffness suggestive of meningeal irritation. Dr Kable described this type of stiffness as having an acute onset leaving the patient virtually unable to move his or her neck or at least unable to move their neck in a “fluid” way. According to Dr Kable it is a late onset symptom and by the time in manifests the patient is already “very sick” and will not move their head in any direction. Dr Whitby’s evidence was that neck stiffness caused by meningeal irritation is a result of it being painful to move the neck. A patient who can move his or her neck forward, either actively or passively, is not considered as presenting consistently with meningism.
The primary judge distinguished between the two kinds of neck stiffness. His comprehensive reasons included a review of evidence that the appellant was observed to have a reduced range of neck movement, and a finding that on 18 and 19 September the appellant exhibited “a reduced range of movement of her neck”.[50] The appellant did not report to the respondent that her neck had restricted movement.[51] But a reduced range of movement was noted in writing by the respondent on 18 September, based on her observation that the appellant’s neck and head had less freedom and some reduced range of movement. The primary judge may be said to have found that the appellant exhibited neck stiffness in the sense of a reduced range of neck movement.
[50]At [208].
[51]At [109].
As to evidence of neck stiffness suggestive of meningeal irritation, the primary judge reviewed the evidence, including the physical manipulation of the appellant’s neck by a physiotherapist on 23 September, in concluding that it was unlikely that physical examination of the appellant’s neck four or five days earlier on 18 or 19 September “would have provoked a response suggestive of meningism”.[52] The following paragraph is central to the primary judge’s conclusion about the appellant’s failure to prove a causative breach of duty:
“[239] The plaintiff‘s evidence referred repeatedly to her neck pain. Her only reference to stiffness of any kind was informing the physiotherapist that she was stiff and sore in the mornings. No‑one gave evidence of observing her holding her neck stiffly or without movement. Her neck was manipulated without reported resistance by a chiropractor on 17 September and a physiotherapist on 23 September. Had the defendant physically examined the plaintiff on 18 or 19 September she would not have detected neck stiffness suggestive of meningeal irritation. Such an examination would not have caused her to suspect the presence of a symptom with a cause any more sinister than a musculo-skeletal cause.”
The sentence which refers to the absence of evidence of observing the appellant “holding her neck stiffly or without movement” should be understood in the context of the judgment as referring to the absence of observation of the appellant holding her neck stiffly so as to suggest meningism. As noted, the primary judge expressly found that the appellant exhibited neck stiffness in the form of a reduced range of movement. He could hardly be taken to have forgotten this evidence and his own finding. The sentence in question might have been better expressed. Any error in not clarifying in that sentence that the neck stiffness being referred to was neck stiffness suggestive of meningeal irritation is of no consequence because the primary judge did in fact find that the appellant exhibited a reduced range of movement of her neck.
[52]At [235].
The appellant challenges the critical factual finding that physical examination on 18 or 19 September “would not have detected neck stiffness suggestive of meningeal irritation”. That finding can be seen to rest on:
·the absence of a report of neck stiffness when the appellant consulted the respondent on those dates;
·a report to the physiotherapist on 23 September that her neck was stiff and sore in the mornings: suggesting it was not always stiff;
·the absence of observation of neck stiffness suggestive of meningeal irritation or the appellant holding her head without movement;
·the manipulation of the neck by a chiropractor on 17 September;
·the manipulation of the neck by a physiotherapist on 23 September.
The appellant contends that the primary judge erred by finding that the failure to physically examine the neck was not causative.
First, the appellant submits that the primary judge found that the appellant’s symptoms had not worsened when she presented on 18 and 19 September. But no such finding was made. The primary judge did not accept the appellant’s evidence that she told the respondent on 18 September that her symptoms, as reported on 12 September, had “increased immensely or were a lot stronger”, but did find that there had been “some decline” in the appellant’s condition.[53]
[53]At [110].
Second, the finding that the appellant’s neck was manipulated without resistance on 17 September is submitted to be against the weight of the evidence. When the chiropractor, Mr Collis, first assessed the appellant on 5 September 2008, he found some restricted “range of motion”, including a loss of five degrees in the appellant’s flexion by testing her active range of motion. She had pain on flexion to T6 at that point. He performed manipulations on 12, 15 and 17 September. He did not record complaints of neck pain when he performed those manipulations, or anything unusual, that required recording other than her complaint of headache and still being sore on 17 September. He did not record or recall any reduction in movement over the amount he had observed and recorded on 5 September. It is unlikely that Mr Collis had a good recollection of each of the appellant’s visits.[54] His evidence about the kind of manipulation he performed on each occasion was scant. Still, he did not record or report that the appellant’s range of movement reduced over time or that there was resistance to manipulation of the neck. His evidence did not suggest that the appellant held her head in a rigid position or resisted movement. Mr Collis’ evidence did not support a finding of neck stiffness suggestive of meningism. The primary judge did not err in finding that the appellant’s neck was manipulated without resistance on 17 September.
[54]At [90].
Third, the appellant submits that the finding that physical manipulation of her neck by the physiotherapist, Mr Elsmore, on 23 September “was able to occur and apparently did not encounter an extraordinary reaction or a reaction so severe that it caused that process to be abandoned”[55] was against the weight of the evidence. However, the evidence supported that conclusion. Mr Elsmore’s evidence was that the appellant reported feeling stiff and sore on waking in the morning and her problems were aggravated by “rotation of the neck and side lying”. On examination she was protective of movement and “wasn’t moving her neck very much at all.” Mr Elsmore was able to provide treatment, including traction and passive flexion. He demonstrated what was involved with passive flexion.[56]
[55]At [235].
[56]Active flexion is where the patient flexes his or her neck. Passive flexion is when the examining person flexes the patient’s head without the active assistance of the patient.
Mr Elsmore’s evidence was that if there had been an adverse response, he would have noted it. There was no such note. His recollection was that the appellant, who had appeared distressed at the start of the consultation, “seemed to respond reasonably well” to the measures he employed.
The appellant had a poor recollection of the visit. Her evidence did not contradict the evidence of Mr Elsmore. The primary judge’s finding which the appellant seeks to challenge was supported by the evidence, and not contrary to the weight of the evidence. The primary judge gave careful consideration to the 23 September consultation with Mr Elsmore[57] and had the advantage of assessing his evidence, including his demonstration of his treatment. The primary judge was entitled to make the findings which he did about the physical manipulation of the appellant’s neck on 23 September.[58]
[57]Mules v Ferguson [2014] QSC 51 at [150]-[161].
[58]At [235] and [239].
Mr Elsmore did not give oral evidence that the passive flexion which he performed allowed the appellant’s chin to touch her chest, and the appeal record does not allow a view to be taken about what his demonstration of passive flexion showed. Relevantly, his evidence was to the effect that the appellant’s neck could be flexed without a report of increased pain or the reactions associated with meningeal irritation.[59]
[59]These reactions were documented in textbooks appended to Dr Turnbull’s report and include Brudzinski’s sign.
The evidence of Mr Elsmore about his manipulation of the appellant’s neck supported the conclusion that four or five days earlier the appellant would not have exhibited neck stiffness suggestive of meningeal irritation if her neck had been manipulated.
The appellant also points to the respondent’s evidence that when she saw the appellant on 18 September her neck movement was “a little bit less free in terms of her animation and [when] she spoke, so from that I assumed she had some reduced range of movement”, and that her different posture from the previous consultation in terms of head movement could be explained by stiffness. The respondent’s observation that the appellant had a stiff neck on 18 September did not suggest that the stiffness was due to meningeal irritation, as distinct from the kind of musculo-skeletal problems that her history and the CT scan taken that day indicated.
Relevantly, the appellant did not report to the respondent that she had a stiff neck, let alone that she could not flex her neck. She did not report that her range of movement, either by rotation or flexion, was limited. The respondent observed some movement in her neck.
I should add that the primary judge did not place any reliance on Dr Miller’s examination on 24 September in reaching his conclusion about what a physical examination of the neck on 18 or 19 September would have detected.[60] The respondent’s submissions do so, and point out that Dr Miller did not detect any neck stiffness that day. This is true. However, Dr Miller did not physically examine the appellant’s neck. I agree with Boddice J that Dr Miller’s evidence was not definitive as to the presence or absence of neck stiffness on 24 September.
[60]Mules v Ferguson [2014] QSC 51 at [233]-[239].
The finding of the primary judge which is challenged was supported by the expert evidence about neck stiffness suggestive of meningeal irritation, its onset and the pain and resistance that is experienced by physical manipulation of the neck of a person suffering meningeal irritation.
One small part of Dr Whitby’s evidence was premised on the assumption that the physiotherapist felt there was “reasonable movement”. That did not detract from his other evidence about neck stiffness suggestive of meningeal irritation. His evidence was that if the stiffness is from inflammation of the coverings of the brain from infection, then “pain and resistance to movement is going to be there no matter how you test it”. Patients resist movement because it hurts. His evidence was that if a physiotherapist could manipulate a patient’s neck without significant pain then the patient did not have neck stiffness from meningitis. Frequently, if the head of a person with meningitis is flexed forward, then the whole torso comes forward: they bend at the spine, not at the neck, due to neck stiffness.
Dr Cameron’s evidence was that it would be an odd response if a patient with meningeal irritation could tolerate neck flexion and also neck traction. A therapist would not be able to manipulate the neck that way without complaint. If a physiotherapist could produce neck flexion, then “the neck problem must not have been particularly troublesome at that time”. Although Dr Cameron was not in a position to say the extent to which the neck was flexed by the physiotherapist, he considered the fact that the physiotherapist was able to flex the neck without causing hardship was unusual.
Dr Kable gave evidence that neck stiffness is a late sign in the course of meningitis, and that any examination for neck stiffness carried out on 12, 18 or 19 September would be unlikely to have yielded an indication of neck stiffness suggestive of meningeal irritation.[61]
[61]At [237].
Conclusion: neck stiffness suggestive of meningeal irritation
I am not persuaded by the appellant’s argument that the trial judge’s finding that a physical examination on 18 or 19 September would not have detected neck stiffness suggestive of meningeal irritation was erroneous. The finding was not based on a misapprehension of evidence about neck stiffness. The trial judge considered in commendable detail the evidence of Mr Collis, the respondent and Mr Elsmore about the appellant’s reduced range of movement, and found that the appellant presented on 18 and 19 September with a reduced range of movement of her neck.
On 18 September, the appellant did not report neck stiffness, but was observed to have some restriction on neck movement. Her neck had been manipulated the previous day. More importantly, it was manipulated, including by passive flexion, on 23 September, without the kind of pain or reaction to such a movement which the expert evidence stated would be experienced by a person suffering a meningeal infection that produced neck stiffness.
The primary judge did not err in finding that a physical examination “would not have detected neck stiffness suggestive of meningeal irritation”.[62] This finding was properly made and supported by the evidence.
[62]At [239].
The evidence left open the possibility that a physical examination, including passive flexion, may not have allowed the appellant’s chin to touch her chest. However, that possibility was not enough to discharge the appellant’s onus of proving what a physical examination of her neck and further inquiry about her headache probably would have detected. On this aspect of the causal breach issue, the appellant failed to prove that a physical examination of her neck probably would have detected neck stiffness suggestive of meningeal irritation, as distinct from neck stiffness from a musculo-skeletal cause.
Headaches and facial flushing
The primary judge found that if the respondent had clarified whether the appellant’s headaches were continuing, the appellant “would inevitably have explained she was from time to time still experiencing headaches, apparently associated with her neck pain”.[63] The appellant’s submissions contend that if the respondent had inquired about the headaches, she would have ascertained that there was a constant headache. But there is no sound basis to disturb the primary judge’s assessment of the evidence that at the relevant time the plaintiff was experiencing intermittent headache associated with neck pain.
[63]At [112].
If on 18 September the respondent had enquired of the appellant about the progress of her past reported symptoms of headache and facial flushing then she would have ascertained that she “was still sometimes experiencing headache associated with her neck pain”.[64] The intermittent headache was located towards the lower back of the head, and its intermittent nature was inconsistent with the type of headache associated with cryptococcal meningitis. The primary judge referred to Dr Whitby’s evidence that “headache associated with cryptococcal meningitis once begun, continues, and becomes worse and the headache persists without break”.[65]
[64]At [245].
[65]At [247].
On 12 September the respondent had noted that the appellant’s intermittent neck pain was causing flushing to the face, and there is no basis to question the finding that if the respondent had asked on 18 September if her neck pain was still causing flushes to the face, she would have indicated it was.[66]
[66]At [114].
The appellant’s neck pain, associated intermittent headache and facial flushing, had not improved and seemed to have worsened between the consultations on 12 and 18 September. The simple analgesia that had been recommended on 12 September may not have been adequate to treat the appellant’s neck pain and associated symptoms. But this does not mean that her headaches were other than intermittent. It did not suggest that her pain and her restricted neck movement had other than a musculo-skeletal cause.
The cumulative consequences of the two breaches of duty
The primary judge ultimately concluded that if the respondent had physically examined the appellant’s neck and enquired about the progress of her past reported symptoms of headache and facial flushing, she “would not have detected anything that would have prompted a different course than that taken”.[67] This conclusion was based upon his earlier findings that:
1.a physical examination of the neck would not have detected neck stiffness suggestive of meningeal irritation;
2.enquiry of the appellant would have disclosed intermittent headache associated with her neck pain.
I agree with Boddice J that the consequences of the two breaches of duty had to be assessed collectively. This is what the primary judge ultimately did. The issue is whether his conclusion was in error.
[67]At [269].
The discharge of the respondent’s duty of care and the consequences of breach arose for consideration on consecutive days. Breaches of duty were found to have occurred on each day. But in some ways the consultations on 18 and 19 September were akin to an extended consultation, broken by the need to obtain the CT scan which showed five bulging discs in the appellant’s cervical spine. The appellant accepted that on 19 September she did not tell the respondent of any new symptoms.[68] In the circumstances, it is convenient to consider, as the parties’ submissions and the primary judge did, the causal consequences of the respondent’s breaches on 18 and 19 September together.
[68]At [135].
The neck pain, associated intermittent headache and facial flushing, and reduced range of neck movement were consistent with cervical spondylosis and the abnormalities reported on the CT scan.
That did not, however, necessarily exclude the presence of some other serious condition. The issue is whether the symptoms which were known along with the symptoms which would have been detected as a result of a physical examination of the neck and enquiry about headaches and facial flushing, would have led the respondent to recognize the potential presence of a serious central nervous system condition, such as cryptococcal meningitis, rather than the musculo-skeletal disorder from which the appellant was apparently suffering.
A relevant issue, and one considered by the primary judge in this context, was the absence of certain symptoms. The appellant did not report to the respondent that she was nauseous and had vomited. Her headache was not constant. She did not have a raised temperature. She was not hypersensitive to light.[69]
[69]Even on 24 September her temperature was normal, she did not report having experienced nausea or vomiting and she had no aversion to light.
It cannot be concluded that a physical examination of the appellant’s neck on 18 or 19 September would have revealed neck stiffness suggestive of cryptococcal meningitis, as distinct from neck stiffness attributable to the musculo-skeletal disorder from which the appellant was suffering. She may have told the respondent, if she had been asked about her neck stiffness, something similar to what she told Mr Elsmore a few days later, namely that she was stiff and sore in the mornings. If asked, she would have described intermittent headache associated with her neck pain.
The symptoms that would have been observed or detected by the additional examination and enquiry which the primary judge found the respondent should have undertaken, along with the absence of other symptoms, support the primary judge’s conclusion that the appellant “did not as at 18 or 19 September have a discernible collection of symptoms which should have caused the [respondent], acting with reasonable care and skill, to conclude that she should refer the [appellant] for urgent or specialist assessment”.[70]
[70]Mules v Ferguson [2014] QSC 51 at [268].
The fact the appellant had neck stiffness and headache, which are symptoms of cryptococcal meningitis is relevant, but not decisive of the issue of what the respondent would have done if she had physically examined the appellant’s neck and enquired about the progress of her past reported symptoms of headache and facial flushing. General neck stiffness which was not suggestive of meningeal irritation, along with intermittent headaches and facial flushing associated with neck pain were symptoms of the musculo-skeletal disorder from which the appellant was apparently suffering, as confirmed by the CT scan.
If the appellant had reported neck stiffness suggestive of cryptococcal meningitis (as distinct from stiffness in the form of a restricted range of movement), or if there was evidence that in the days immediately before or after 18 and 19 September Mr Collis or Mr Elsmore had been unable to flex the appellant’s neck to any significant degree, then the position would have been quite different. However, the evidence that her neck was able to be manipulated, particularly by Mr Elsmore who performed passive flexion on 23 September, were relevant matters for the primary judge to assess. So too was the fact that, if asked, the appellant would have reported intermittent headache, not the constant headache which might indicate the presence of cryptococcal meningitis or some other sinister central nervous system condition. These facts, along with the absence of other symptoms, justified the primary judge’s conclusion that additional examination and enquiry on 18 or 19 September would not have prompted a different course of action. That conclusion has not been shown to have been in error.
The fact that the appellant had cryptococcal meningitis when she consulted the respondent on 18 and 19 September is insufficient to prove in all the circumstances that a physical examination of her neck on either of those days would have revealed significant neck restriction suggestive of meningeal irritation. The symptoms of cryptococcal meningitis may not have developed to that point of time to be recognized. Dr Whitby, an infectious diseases physician, explained at the trial:
“The classical features of meningitis are very obvious: the temperature goes up because it’s an infection. The patient develops a headache, because the pressure in the skull, around the brain, increases. That causes the patient to have vomiting and nausea. But cryptococcal meningitis is a very insidious meningitis; a very insidious presentation, in some cases, and it could – it’s quite conceivable that those symptoms were not sufficiently present to be recognized…”
As at 18 and 19 September, a number of symptoms had not developed and one cannot reasonably infer that because cryptococcal meningitis was developing it had developed to a stage where the appellant would not have been able to actively or passively flex her neck on those days. Four or five days later she was “not moving her neck very much at all”. But her reported problem, as explained to Mr Elsmore, was with rotation. She did not report that her neck pain was aggravated by flexion. The passive flexion which Mr Elsmore performed was undertaken without a report her neck could not be flexed forward. His contemporaneous note and his evidence suggest that it could. In the circumstances, I am unwilling to infer from the presumed presence of cryptococcal meningitis on 18 and 19 September that a physical examination of the appellant’s neck would have revealed significant neck restriction suggestive of meningeal irritation on those days.
The appellant’s case on causation failed for lack of sufficient evidence to conclude that had a physical examination of the neck, in conjunction with enquiry about headaches and facial flushing, been undertaken it would have made a difference to the tragic outcome which befell the appellant.
Appeal against findings about symptoms at consultations
Grounds 8, 9 and 10 of the notice of appeal challenge the primary judge’s findings about the consultations on 18 and 19 September 2008 and the appellant’s symptoms at those times. I agree with Boddice J that the findings were consistent with collateral material, and that the appellant has not established a basis to overturn findings of fact, which were based, in part, on a rejection of certain evidence given by the appellant and her mother. In particular, it was open to the primary judge to find that at the relevant time the appellant’s headaches were intermittent rather than constant, and that the appellant did not report nausea and vomiting to the respondent.
Appeal against upholding the s 22 defence
I agree with Boddice J that the evidence of Dr Kable and Dr Turnbull did not warrant the conclusion that the respondent had discharged her onus in establishing a defence under s 22 of the Civil Liability Act, 2003 (Qld). Section 22(1) provides:
“(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.”
The defence turns upon proof of how the professional in fact acted, and this may differ from how the person is alleged by either of the parties to have acted. As the primary judge noted, the facts as found were largely consistent with the respondent’s version of events. However, I do not consider that either Dr Kable or Dr Turnbull’s evidence established that the facts as found about what the respondent did and failed to do established that she “acted in a way that at the time was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice”. Nor was it established by other evidence, including the evidence of Dr Vinen, Dr Whitby and Dr Eisen.
As for Dr Kable’s evidence, he explained the importance of a general practitioner, having been told of a headache, to ascertain its location, duration, intensity and frequency, so as to identify the cause of the headache.[71] These would be standard questions. Here, the appellant complained of headache on 12 September, and of neck pain on 18 September. Dr Kable did not give evidence that in the circumstances a failure to clarify the nature of the neck pain (which also was described in the evidence as a basal headache) and whether the respondent’s headaches persisted was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. His evidence tended to suggest that competent professional practice would have been to inquire about headache.
[71]At [246].
On the issue of neck examination, and whether the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice, in the present context one must avoid generalities, such as the proposition that a patient complaining of neck pain may not require physical examination, since in some circumstances examination by observation and taking information may suffice.[72] All depends on the circumstances.
[72]At [229].
Dr Kable’s report dated 4 January 2013 about whether the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice was directed at the consultation on 12 September. An earlier report of Dr Kable dated 17 August 2012 simply asserted that a significant number of general practitioners would have managed the appellant in exactly the same manner as the respondent, without developing the reasons for that conclusion. It referred to his initial report dated 24 February 2010, which addressed the related, but different, question of whether the respondent’s actions were reasonable, and of a standard expected of a general practitioner. In doing so Dr Kable noted that on 18 September 2008 there was a reduced range of movement in the neck, and stated that neck stiffness is a specific clinical sign that is elicited by the examining doctor, and then tested as the doctor attempts to flex the neck forward pointing the chin towards the chest. Despite this, Dr Kable opined that there was “no indication on any of these occasions” (including 18 and 19 September) for the respondent to seek to elicit neck stiffness. Yet, the evidence was of an observed restriction on range of movement and neck pain. His assertion in his report of 4 January 2013 that “[t]here was no indication on any of these three occasions for [the respondent] to examine [the appellant] for neck stiffness” is seemingly contradicted by the observation made by the respondent on 18 September of neck stiffness, in the sense of a reduced range of movement.
The facts as found are that the appellant exhibited a reduced range of movement, had continuing neck pain, and, if asked, would have reported continuing intermittent headaches and flushing to the face which appeared to be connected with her neck pain. Dr Kable’s evidence does not seem to establish that, in not undertaking a physical examination of the appellant’s neck in those circumstances, the respondent acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.
The evidence in respect of an observable restriction in the appellant’s range of movement and the existence of headaches, in the context of a deteriorating condition, supported a conclusion that if the respondent, exercising reasonable care and skill, had undertaken a physical examination of the appellant’s neck and made appropriate enquiries as to the location, duration, frequency and severity of her headaches at the consultations on 18 and 19 September 2008, she would have determined the appellant had restricted neck movement and headaches in a region consistent with the possibility of meningeal infection. Having regard to the evidence that this insidious disease cryptococcal meningitis, with its gravely serious consequences, is more common in the tropical north, such a conclusion ought to have resulted in the respondent referring the appellant for investigation either to a specialist or to her local hospital.
The appellant, when referred for a CT examination, undertook that examination that same day. That fact provided ample basis for the trial judge’s conclusion that had a referral been given, the appellant would have acted upon it promptly.
Section 22
Section 22 of the Act provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field. That defence requires an identification of the particular conduct, and the group of peer opinion supporting that conduct as being widely accepted practice.[106] The onus rests on the respondent to satisfy that defence. Whether the respondent met that onus required a consideration of the respondent’s conduct in the context of the presenting symptoms as found by the trial judge.
[106]See generally, Hunter and New England Local Health District v McKenna (2013) Aust Torts Reports 82-158; [2013] NSWCA 476; an appeal to the High Court [2014] HCA 44 [12], expressly did not consider this aspect of the judgment.
The trial judge’s finding that the respondent’s conduct at the consultations on 18 and 19 September 2008 amounted to conduct that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice was based on an acceptance of the opinions of two experienced general practitioners, Dr Kable and Dr Turnbull, that the respondent’s management of the appellant’s case was consistent with a reasonable standard of general practice.
However, the opinions of Dr Kable and Dr Turnbull were based on facts consistent with the respondent’s version of events. The facts as found by the trial judge were not entirely consistent with the respondent’s version of events. They differed in two critical respects. First, the trial judge did not accept the respondent’s version that the appellant had not said anything to her on 18 September about a headache. The trial judge found the appellant, in referring to her neck pain, also referred to experiencing pain at the base of her head. Second, the trial judge accepted the reference in the respondent’s notes to reduced range of movement implicitly acknowledged some decline in the appellant’s condition relevant to her previous presentation on 12 September 2008.
Dr Kable’s opinion was expressed on the basis that at the consultation on 18 September 2008, the appellant complained of continuing neck pain and intermittent dizziness and was observed to have a reduced range of movement in the neck. On the basis of those complaints, and the outcome of the CT scan, Dr Kable opined the respondent’s conduct was reasonable and at a standard expected of a general practitioner in Queensland. However, that conclusion was proffered in circumstances where Dr Kable expressly said there was no indication on any of the occasions of consultation for the respondent to seek to illicit neck stiffness as the appellant did not have any of the clinical indicators of meningitis.
Dr Kable did not consider what was the appropriate care having regard to the additional aspect of there not only being an observable reduced range of movement but ongoing headaches. The significance of this additional factor was highlighted in Dr Kable’s supplementary report. Dr Kable, in response to a specific question as to whether the respondent ought to have, on 12, 18 or 19 September, performed a specific clinical test for neck stiffness, said “there was no indication on any of these three occasions to examine for neck stiffness as patients with meningeal irritation often sit quietly and do not move their head and neck in a fluid and natural way” and additionally would have “other symptoms of meningitis such as severe headache, photophobia, nausea, fever and vomiting”. Dr Kable did not consider what would be acceptable medical practice where the patient has re-presented with reduced range of movement, ongoing headaches, albeit intermittently, and a decline in their previous presentation.
Further, Dr Kable gave evidence if the appellant, on 12 September 2008, complained of neck pain with accompanying headaches and flushing to the face, a reasonably prudent general practitioner, when that patient re-presented on 18 September 2008, would check the progress of all three symptoms, namely the neck pain, the headaches and the flushing to the face.[107] He also accepted an observation of reduced range of movement would usually be a concerning observation in the context of the presentation of pain and headache.[108] Those opinions are at odds with a finding the respondent’s conduct, on the symptoms as found by the trial judge, was in accordance with the reasonable standard of general practitioners.
[107]AB 623/45 – 624/5.
[108]AB 625/20.
Dr Turnbull’s opinion that the respondent’s management of the case was consistent with a reasonable standard of general practice was dependent upon an acceptance of the respondent’s version of the consultations. Dr Turnbull had earlier opined a general practitioner presented with a patient continuing to complain of headache, in addition to documented symptoms of neck pain with an observed reduced range of movement and dizziness, ought to explore the descriptive characteristics of the neck pain and headaches and undertake a physical examination of the neck.[109] The trial judge found the respondent ought to have undertaken those steps had she exercised the reasonable care and skill necessary in the circumstances.
[109]AB 1428 – AB 1429.
Dr Turnbull did not express the opinion the respondent’s management of the case was consistent with a reasonable standard of general practice if regard was had to the symptoms at the time of the consultations on 18 and 19 September 2008, as found by the trial judge. To the contrary, Dr Turnbull said if the appellant’s condition had worsened with increased pain, dizziness and reduced range of movement of the spine at the time of the consultation on 18 September 2008, the respondent’s management of the case fell below that of a reasonable standard for a general practitioner in Australia.[110] The trial judge found the condition had deteriorated; not only was there a reduced range of movement, there was a complaint of dizziness for the first time, and ongoing headaches.
[110]AB 1319 – AB 1320.
The trial judge failed to have regard to those symptoms when finding that Dr Kable and Dr Turnbull’s opinions were that the respondent’s consultation, even without having conducted a physical examination, was consistent with a reasonable standard of general practice.[111] Significantly, both Dr Kable and Dr Turnbull accepted that in the case of headaches, there was a need to obtain a complete history about the nature, location and severity of those headaches.[112]
[111]AB 2329[228].
[112]AB 559; AB 1428.
The other experts had also expressed opinions in relation to the respondent’s conduct, although none of those experts were experienced general practitioners. To the extent evidence was given by Professor Eisen and Dr Whitby that the respondent had acted appropriately and reasonably, their opinions were dependent upon an acceptance of the respondent’s version of the consultations. No opinion was expressed based on the symptoms as found by the trial judge.
In reaching the conclusion that s 22 was satisfied, the trial judge relied upon the expert opinions expressed by Dr Kable and Dr Turnbull. However, those opinions were not based on the appellant’s presentation, as found by the trial judge. Against that background, there was no evidence upon which the trial judge could be satisfied the respondent had discharged her onus under s 22 of the Act.
The appellant also contended s 22(5) rendered s 22 of no application in any event, as the conduct in question did not relate to a failure to diagnose and treat, but a failure to refer for specialist assessment. The appellant submitted the words “in connection with” are broad, and may be contrasted with words such as “directly as a result of”.
The appellant’s interpretation of s 22(5) fails to have proper regard for the scheme of the Act as a whole. That scheme expressly excludes failures to warn or advise from the purview of acceptable peer professional opinion. So much is so from a consideration of the terms of s 21 of the Act. Subsection (5) of s 22 simply extends that exclusion so as to ensure that anything in connection with a failure to warn or advise is not the subject of a defence pursuant to s 22 of the Act.
However, the appellant’s case, as pleaded, was not of a failure to warn or advise. It was clearly premised on a failure to undertake a proper examination and assessment, and to arrange an appropriate referral for specialist assessment. Viewed in this way, s 22(5) has no operation in the instant case.
The trial judge did not err in finding that s 22(5) was appropriate to those cases where the breach otherwise arising flows from a failure to properly provide sufficient information to allow the patient to make an informed decision about the risk of harm but was not apt to apply in the present case.
Notice of Contention
The respondent submits the trial judge erred in finding the respondent did not exercise reasonable care and skill by failing to conduct a physical examination of the appellant’s neck on 18 and 19 September 2008, and by failing to make further enquiries about the appellant’s ongoing headache and facial flushing. The respondent contends both these findings were against the weight of the evidence.
The trial judge’s conclusion that the respondent’s failure to conduct a physical examination of the appellant’s neck amounted to a breach of her duty was not based on an acceptance of Dr Vinen’s evidence that a physical examination should always occur in respect of a patient presenting with reduced range of neck movement and ongoing headache. The trial judge specifically accepted the complaint of neck pain would not of itself necessarily call for physical examination. The trial judge found that once it was apparent the appellant had a visibly reduced range of movement on 18 September 2008 the respondent, exercising reasonable care and skill, should have physically examined her neck.[113]
[113]Mules v Ferguson & Anor [2014] QSC 51 [232]; AB 2330.
There was a cogent reason why a physical examination of the neck was required in the instant case. By the time of the consultations on 18 and 19 September 2008 the appellant had presented with symptoms which had deteriorated since her earlier consultation on 12 September 2008. By the consultation on 12 September 2008, the appellant had an observable, reduced range of movement in terms of head movement and posture. Dr Kable accepted that a reasonably prudent general practitioner faced with a patient re-presenting after an earlier consultation complaining of ongoing neck pain, headaches and flushing to the face would check on the progress of all three symptoms. Dr Turnbull went further, considering it was standard practice of a reasonably competent general practitioner to conduct a physical examination of the patient in such circumstances.
A consideration of the evidence as a whole supported the trial judge’s conclusion that the presence of a visibly reduced range of movement required a physical examination of the neck if the respondent was exercising reasonable care and skill. The trial judge did not hold the respondent to a higher standard of care than was reasonable in the circumstances.
The finding that the exercise of reasonable care and skill also necessitated further enquiry as to the nature and severity of the headache was also amply supported by a consideration of the evidence as a whole. The trial judge expressly rejected the respondent’s evidence that the appellant had not said anything to her on 18 September 2008 about a headache. In the context of a complaint of ongoing neck pain, including experiencing pain at the base of the head, against a background of the respondent having noted on the earlier consultation on 12 September 2008 that the neck pain was causing headache, there was a need for the respondent, exercising reasonable care and skill, to make further enquiry in relation to the nature and severity of the appellant’s ongoing headaches. Dr Kable opined it was important for a general practitioner to ascertain the location, duration, intensity and frequency of ongoing headaches complained of by a patient. That information is essential to allow identification of the cause of the headaches.
The respondent also placed in contention the trial judge’s finding that had the respondent referred the appellant for specialist assessment or to her local hospital, on or about 19 September 2008, it is likely the appellant’s condition would have been diagnosed and treatment commenced on or before 23 September 2008, with the consequence the appellant would not have suffered the catastrophic loss of her sight and hearing. The respondent contends there was no evidence upon which the trial judge could properly conclude the appellant’s illness would have been diagnosed and appropriate treatment commenced on or before 23 September 2008. The respondent relies on the trial judge’s finding that the appellant’s symptoms at the relevant time did not require an urgent referral, or indeed referral to an emergency department, and Dr Cameron’s evidence that a referral involving a delay of several days or one to two weeks would have been appropriate as at 19 September 2008.
The respondent contends the fact the appellant’s condition was diagnosed, and treatment commenced, within one day of her admission to the Cairns Private Hospital on 25 September 2008, cannot properly be used to support a conclusion the diagnosis and treatment would have occurred within 24 hours as the appellant’s condition and symptoms were far more advanced at the time of her admission to the Cairns Private Hospital on 25 September 2008. Further, Dr Cameron gave evidence that, in the context of the underlying findings of fact, blood tests were not warranted on 19 September 2008 but were on 24 September 2008. Dr Cameron also gave evidence there was no specialist neurologist based in Cairns in 2008.
Whilst Dr Miller did not undertake such steps when the appellant presented at the Cairns Base Hospital by ambulance on the evening of 24 September 2008, at the time of that presentation Dr Miller was concerned the appellant was over-drugged, and recommended referral to a pain specialist. It is likely a different response would have followed had the appellant presented with a letter of referral seeking specialist assessment for what was a deteriorating condition involving an observable, reduced range of neck movement, ongoing headache, and dizziness.
The appellant’s prompt attention to the referral for a CT scan on 12 September 2008 amply supported a conclusion the appellant, if given a referral on 19 September 2008, would not have wasted time in arranging and attending upon any specialist appointment. Dr Miller gave evidence that a patient who attended the Cairns Base Hospital with a referral from the general practitioner would have been seen by him, and that the hospital had the capacity to immediately carry out a lumbar puncture. A lumbar puncture would have detected and diagnosed the presence of cryptococcal meningitis within hours of its performance. Against that background, there is no basis to conclude the trial judge’s findings on this aspect were not open, or not supported by the evidence.
Conclusions
The trial judge’s findings the respondent had breached her duty of care were open on the evidence. The trial judge’s findings as to the likely outcome of the consultations on 18 and 19 September 2008, had the respondent not breached her duty of care, were against the weight of the evidence. Had the respondent acted in accordance with her duty of care, she ought to have referred the appellant for specialist assessment or to her local hospital for further specialist assessment. The trial judge’s findings that such a referral is likely to have led to the appellant’s condition being diagnosed and treatment commenced on or before 23 September 2008, with the consequence the appellant would not have suffered the catastrophic loss of her sight and hearing, were open on the evidence. There was no evidence sufficient to satisfy the respondent’s onus in respect of s 22 of the Act.
I would order:
1. The appeal be allowed.
2. The judgment and orders entered below be set aside.
3. Instead, judgment be entered for the appellant, in the amount of damages assessed by the trial judge, together with interest thereon.
4.The parties have leave to make submissions as to costs in accordance with Practice Direction Number 3 of 2013, para 52. If no submissions are made within seven days, the respondent pay the appellant’s costs of the trial, and of this appeal, to be assessed on the standard basis.
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