Richards v Rahilly - [2005] NSWSC 352

No judgment structure available for this case.

CITATION:
Richards & Ors v Rahilly & Anor [2005] NSWSC 352

HEARING DATE(S): 01/12/03, 02/12/03, 03/12/03, 04/12/03, 05/12/04, 08/12/03, 10/12/03, 11/12/03, 12/12/03, 15/12/03, 16/12/03, 17/12/03, 18/12/03, 16/02/04, 17/02/04, 20/02/04, 23/02/04, 24/02/04, 30/06/04, 02/09/04, 06/10/04, 08/10/04, 22/11/04, 21/03/05, 22/03/05

JUDGMENT DATE :

29 June 2005

JUDGMENT OF:
Hoeben J at 1

DECISION:
Judgment entered for defendants.

CATCHWORDS:
MEDICAL NEGLIGENCE - infant with seizures - breach of duty by paediatrician - proper history taking - delay in diagnosis - advice of paediatric neurologist - obligation of hospital to provide appropriate treatment - obligation of hospital to explain all reasonable treatment options - should particular drug have been used by hospital. CAUSATION - did delay in diagnosis cause adverse outcome - would parents have accepted medical advice - would earlier administration of drug by hospital have produced a better outcome.

CASES CITED:
Chappell v Hart (1998) 72 ALJR 1344
Eagle v Prosser [1999] NSWCA 166
KL v Farnsworth [2002] NSWSC 382
Maloney v Commissioner of Railways (NSW) (1978) 52 ALJR 292
Perre v Apand Pty Limited (1998) 198 CLR 180
Rogers v Whitaker (1992) 175 CLR 479 at 489
Rosenberg v Percival (2001) 205 CLR 434
Rufo v Hosking [2004] NSWCA 391
Wakim v McNally (2002) 121 FCR 162

PARTIES:
Rhiannon Lorraine Richards by her tutor Judith Anne Ennis - First Plaintiff
Judith Anne Ennis - Second Plaintiff
Mark Richards - Third Plaintiff
Dr Patrick Rahilly - First Defendant
Royal Alexandra Hospital for Children - Second Defendant

FILE NUMBER(S):
SC 20324/01

COUNSEL:
Jay Anderson/D Hirsch - Plaintiffs
Paul Brereton SC - Defendants

SOLICITORS:
Maurice Blackburn Cashman - Plaintiffs
Blake Dawson Waldron - Defendants

LOWER COURT JURISDICTION:

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 29 June, 2005

20324/2001 – Rhiannon Lorraine RICHARDS by her tutor Judith Anne ENNIS and Ors v Dr Patrick RAHILLY & Anor
JUDGMENT

1 HIS HONOUR: The first plaintiff (Rhiannon Richards) was born on 17 October 1998 to Judith Ennis her tutor in these proceedings (second plaintiff) and Mark Richards (third plaintiff). For ease of reference, I have in this judgment referred to the parties by name. Rhiannon is now six years of age. The events the subject of these proceedings occurred during the first two years of her life. She was diagnosed with a form of epilepsy in November 1999. The precise nature of the epilepsy remains a matter in dispute, as does the appropriate course of treatment and whether earlier intervention by the defendants would have made any difference to her condition. These proceedings are essentially concerned with those controversies.

2 The matter was heard by Shaw J over twenty two hearing days between 1 December 2003 and 8 October 2004. Comprehensive written submissions were prepared by each side. Shaw J retired in November 2004 before delivering judgment. It was agreed between the parties that the matter should proceed before me on the basis of the transcript of evidence, the exhibits and the written submissions. The written submissions were extensive and comprehensive. Counsel for both parties made further oral submissions to me between 21 March – 22 March 2005. On that occasion video material was viewed and explained. I did not see or hear any of the witnesses. This judgment is based on my examination of the materials to which I have referred and the oral submissions made to me.

Nature of claim

3 Liability and damages were severed. The matter proceeded before Shaw J and myself solely in relation to liability. The trial was limited by agreement between the parties to the question of the liability of Dr Rahilly and the hospital to Rhiannon.

4 The claims by Ms Ennis and Mr Richards for nervous shock were not dealt with except insofar as their success depended upon a finding in favour of Rhiannon against one or both of the defendants.

5 The case against Dr Rahilly as finally refined was that there was an excessive delay in the diagnosis process, in particular a failure to arrange an urgent EEG soon after he had a telephone conversation with Dr Grattan-Smith on 30 September 1999. In that regard it was asserted that there was a “communication break down” between Dr Rahilly (a general paediatrician) and Dr Grattan-Smith (a paediatric neurologist).

6 It was submitted that there were failures preliminary to that breach in that he failed to take a proper history from Ms Ennis and Mr Richards, that he failed to act on the clinical history which he obtained, in particular that Rhiannon had a normal birth and had developed normally until shortly before he first saw her, and that he failed to respond adequately to the complaints of Rhiannon’s parents in relation to her deteriorating condition.

7 The delay was at most four and a half weeks. Rhiannon’s case was that had an urgent EEG been arranged soon after 30 September 1999 she would have received treatment earlier so that her brain dysfunction would have been reduced and her ultimate developmental outcome would have been better. Accordingly the delay by Dr Rahilly either caused damage directly to Rhiannon or alternatively, she lost the chance of a better outcome.

8 As against the hospital the case was twofold. Firstly the hospital (Dr Grattan-Smith) should have used the medication Vigabratrin as either a first line treatment of Rhiannon or within a short time after initial treatment when other drugs had not been successful. Secondly there had been a failure to advise Ms Ennis and/or Mr Richards adequately or at all concerning the benefits and risks of Vigabratrin so as to enable an informed decision to be made by them as to whether and if so when, that treatment should have been provided for Rhiannon. Had they been so advised they would have directed the hospital to treat Rhiannon with Vigabatrin.

9 It was Rhiannon’s case that each of those failures or a combination thereof resulted in her seizures or infantile spasms (the diagnosis is disputed) continuing for longer than they should have. It was submitted that because Rhiannon had responded rapidly and positively to Vigabatrin when it was finally given to her, had it been provided in a more timely manner the seizures would have ceased earlier and there would have been less long-term developmental retardation and brain dysfunction.

10 The response by the defendants can be summarised:

(i) Rhiannon had significant developmental delay before the onset of seizures and which was present by at least the age of six months.

(ii) The failure by Dr Rahilly to arrange an urgent EEG was not a departure from appropriate professional standards and was in the circumstances reasonable, particularly when he did so on the advice of a specialist paediatric neurologist.

(iii) The hospital did not depart from appropriate standards by implementing a regime of medication which did not include Vigabatrin in that Rhiannon did not have “infantile spasms” and the treatment regime actually implemented was one which was recognised and accepted in the treatment of such conditions.

(iv) Vigabatrin was effective in only some cases of infantile spasms and by 1997 its use was associated with the development of visual field defects. It tended to be used only when other more recognised treatments had failed to be effective.

(v) There was no obligation on the hospital as a matter of law to explain the advantages and disadvantages of Vigabatrin to Rhiannon’s parents unless and until it was intended to treat Rhiannon with Vigabatrin.

(vi) If a breach of duty was found, it did not cause Rhiannon damage. The advice of Dr Grattan-Smith as to what treatment to use would have been accepted. It was not clear that Vigabatrin had had an immediate and positive effect on Rhiannon. Her improvement may have been coincidental with its administration. In any event, such improvement was gradual and over time.

(vii) There was insufficient evidence to establish that brain damage is caused by uncontrolled seizures. In the circumstances of this case causation could not be inferred from proof of a breach of duty.

Factual background

11 Although there were a number of factual disputes, it is important to understand the background against which the plaintiffs’ claim is made. I have indicated those matters which are disputed. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

12 Rhiannon was born on 17 October 1998. Her birth was normal. Her mother, Judith Ennis, was born on 23 February 1974 and her father, Mark Richards, was born on 24 October 1963. Rhiannon’s parents had a somewhat volatile relationship. It had commenced in 1993 and was punctuated by separations and reconciliations. Judith Ennis was the mother of four children, the first child having been born on 20 September 1991. She had a second child on 8 May 1993. After her relationship with Mr Richards commenced she had a third child of which he was the father and who was born on 1 December 1994. Rhiannon was thus the fourth and youngest of the children of Ms Ennis. None of the other children had exhibited developmental problems as they were growing up.

13 During the periods of reconciliation Mr Richards would stay with Ms Ennis for months at a time, but would then move out. Mr Richards was working as a painter during 1999-2000, which involved periods of employment and unemployment. As of August-September 1999 Mr Richards and Ms Ennis were together but experiencing difficulties. They separated in October/November 1999. During the periods of separation Mr Richards maintained a close interest in his two children. Ms Ennis was the principal care provider for Rhiannon.

14 Rhiannon presently suffers from serious brain dysfunction. She is not able to speak. She is significantly developmentally delayed. Her epilepsy is reasonably controlled. She is able to sit and walk. She can follow simple verbal directions accompanied by gestures and signs. She is fully dependent on the help of a carer.

15 Rhiannon appears to have developed relatively normally until the age of six months (17 April 1999). There is a dispute in relation to this. It is Rhiannon’s case that she continued to develop normally until August/September 1999 when she began to show signs of irritability and some developmental problems. It is the defendants’ submission that developmental delay had occurred earlier than that and was present by the age of six months.

16 On 25 August 1999 the plaintiff was taken by her parents to see Dr Helen Borg, a general practitioner (GP), in Dubbo for a right ear infection. An anti-biotic was prescribed. The reason Dr Borg was consulted was because an appointment could not be obtained with the plaintiff’s usual GP. Doctor Borg had not seen the plaintiff before. The state of the plaintiff’s health and developmental level at the time of this consultation is a matter in dispute.

17 On 6 September 1999 Rhiannon was taken by Ms Ennis to see Dr Frater (Dr Frater was a general practitioner who worked from the same practice as Dr Gibson, Rhiannon’s usual GP). The reason for this attendance was that Rhiannon had an upper respiratory tract infection. An antibiotic was prescribed.

18 There is a dispute as to what was said at that consultation. Doctor Frater’s notes record under the heading “Signs” - “Not hearing and no crawling yet …” and under the heading “Follow up” – “Needs Paeds Assessment”. It was agreed that “paeds” meant paediatric. Ms Ennis could not remember anything being said about hearing and was definite that nothing was said to her about seeing a paediatrician.

19 On 19 September 1999 Rhiannon was observed to be “rolling her eyes back and throwing her head back”. (T.84.45) This phenomenon was observed by Ms Ennis, Mr Richards and a Barbara Lancaster.

20 On 20 September 1999 Rhiannon’s parents took her to Dr Gibson and reported what they had seen. Their evidence was that Rhiannon had been crying and irritable throughout August and September. Doctor Gibson recorded under “Symptoms” – “Attacks of rolling eye back, not sitting, not crawling or creeping.” It was common ground that until that time Rhiannon was not sitting, crawling or creeping. It was common ground that Dr Gibson’s note “suffering attacks of rolling eyes back for last few months …” must be mistaken since that symptom had only arisen within a day or so of the consultation.

21 Doctor Gibson recommended that a paediatrician be consulted. Three names were suggested by Dr Gibson and Rhiannon’s parents chose Dr Rahilly. Mr Richards tried to get an appointment, but was told that Dr Rahilly was booked out and could not see them. Mr Richards was eventually successful and it was arranged that Dr Rahilly would see Rhiannon during lunchtime on 21 September 1999. This was outside his normal consulting hours.

22 It was the evidence of Ms Ennis and Mr Richards that on the morning of 21 September 1999 before the attendance on Dr Rahilly, a friend, Diane Dowton observed Rhiannon rolling her eyes and throwing her head back. This occurred at Ms Dowton’s place of work being a take-away chicken shop known as the “Golden Hen”. According to Ms Ennis and Mr Richards, Ms Dowton who had some experience with epilepsy said “She is having a seizure” and advised them to communicate this to the paediatrician when they saw him.

23 Ms Ennis initially said that this incident in the “Golden Hen” had occurred after the first consultation with Dr Rahilly, but in cross-examination said that it had occurred before. It was the evidence of Mr Richards that the incident occurred before the consultation with Dr Rahilly. Ms Dowton in her statement recalled that the incident had occurred before a visit to Dr Rahilly. I am satisfied that such an incident did occur before the first consultation with Dr Rahilly.

24 The consultation with Dr Rahilly took place at lunchtime on 21 September 1999 as had been arranged. There is a significant dispute as to what was said at that consultation. It was clear from the cross-examination that Ms Ennis had little recollection. She said that the consultation was rushed. She remembered that Mr Richards had told Dr Rahilly that Rhiannon was rolling her eyes and throwing her head back and was irritable. She remembered Dr Rahilly saying that Rhiannon should attend an early intervention centre and that she was mildly retarded.

25 Mr Richards had a better recollection of what had occurred at that consultation. He said that he told Dr Rahilly that Rhiannon had been irritable for a couple of months and was rolling her eyes and throwing her head back. This was demonstrated by him to the doctor. The doctor had asked whether Rhiannon was smiling, giggling, grabbing things and he had replied ‘no’. This conflicted with what Ms Ennis had said that Rhiannon had smiled at six weeks. Mr Richards sought to explain the disagreement in that when he provided that information to Dr Rahilly, he was referring to the situation at the time of the consultation, not to what had occurred in the past.

26 Mr Richards said that he had informed Dr Rahilly that one of his friends thought that Rhiannon had had a seizure and he asked Dr Rahilly whether she could be admitted to hospital. He said that Dr Rahilly appeared to ignore that information and request. Doctor Rahilly advised him that he was going to carry out some tests and that Rhiannon was mildly retarded. He characterised Dr Rahilly as “abrupt, obnoxious and rude”.

27 Dr Rahilly’s evidence comprised his statement and oral evidence. He made notes of the consultation which are set out in para (16) of his statement. On 4 October 1999 he wrote a letter to Dr Gibson referring to what had occurred and what information he had elicited during the consultation. His evidence was more detailed than that of Ms Ennis and Mr Richards.

28 Dr Rahilly’s letter to Dr Gibson of 4 October 1999 stated:

“Thank you for asking me to see Rhiannon who was brought up by her parents 21.9.99. I note that they were concerned because she had a tendency to roll her eyes back. You were concerned by her poor development.

Product of a normal pregnancy, three weeks premature delivery (I will check birth weight next time!), the parents were a bit vague about her milestones. The mother feels she smiled at six weeks; the father feels she has yet to smile properly. They feel she can see and hear and tell me that eyes and ears were checked out as normal at Baby Health Clinic. She rolled over from front to back at about 7-8 months of age and it doesn’t sound as if she has gained many skills since then. She was seen in the Baby Health Clinic for the first months of life and then discharged. She does not sit, reach, grab or babble. She does follow sound and sight, the parents believe.

Rhiannon has this tendency to roll her eyes back. This up till recently has only been when she hears a loud noise or is otherwise distressed but recently has happened a bit more spontaneously. This is a fleeting episode with no alteration in consciousness or other associated features.

Mother is a twenty five year old housewife, father a thirty six year old part time painter and decorator. They have a boy of five. The father has a child of six years from a previous relationship who does not live with them. The mother has children of six and eight from a previous relationship who live with her most of the time. There is no family history of delay; the other children were, in the parents’ eyes, quite advanced.

On examination (which I will repeat next week as this was a somewhat rushed preliminary consultation) I felt cardio-vascular, respiratory and abdominal systems were normal as were tone, power and jerks. Rhiannon could weight-bear on the legs well. However, her milestones are as outlined above so that she has some global retardation with gross motor, fine motor and social development at about a 3-4 month level.

As a first step I have arranged ultrasound of the head, urea, electrolytes, creatine, calcium phosphate, magnesium thyroid function tests, urine for metabolic screen and chromosomes. I will add all the results from this as a second part to this letter. I will be reviewing Rhiannon in a week. …”

29 His statement as to the consultation was:

“(8) Rhiannon’s mother told me that she felt that Rhiannon had smiled at six weeks, but her father wondered whether she had ever smiled properly. They reported she had rolled from front to back at about seven to eight months but had not gained any real skills since that time and she was not speaking. I found it difficult to elicit from Rhiannon’s parents a clear developmental history as they argued in front of me about her abilities and whilst the failure to progress was timed as being from seven-eight months, the history given (for example of smiling) suggested delayed development from an earlier age.

(9) Rhiannon’s parents informed me she had been checked by the Baby Health Clinic for the first few months of her life and discharged without any note of problems. I do not recall being shown Rhiannon’s “blue book” from the Baby Health Clinic. I recall asking Rhiannon’s parents to bring it to the next visit but as far as I can recall, this never happened.

…

(13) On examination Rhiannon’s cardiovascular, respiratory and abdominal systems were normal. Tone power and jerks appeared normal, pupil reaction was normal but the fundi were not seen.

(14) I considered Rhiannon was significantly globally retarded and estimated her development was at about the 3-4 months level. I discussed with her parents at this or the next consultation the issue of Rhiannon going on to an early intervention program and I strongly supported it.

(15) I recommended Rhiannon undergo an ultrasound of the head to exclude the possibility of an acute problem due to haemorrhage. I also ordered tests for urea, electrolytes, creatinine, calcium, phosphate, magnesium, thyroid function, a urine metabolic screen and chromosomes. I arranged for a further review of Rhiannon in approximately one week.”

30 In his oral evidence (T.709ff) Dr Rahilly said:

“A. Well they came in and sat down. The mother was holding Rhiannon and so as I sat facing them she was on the left of the father. I asked them what the problems were and her mother said that the main things worrying her were that she was not able to do the sorts of things most babies were able to do at that age, that she had recently become irritable and more recently had begun to startle rather easily and tense up, particularly with loud noises and more recently again there had been some eye rolling noticed when she startled with the noises.

…

I asked if there had been any other movements. I asked both parents and one of them, and I can’t remember which, answered the movements were tensing with the head going back and that there weren’t other movements.

…

31 Under cross-examination Dr Rahilly agreed that he had made a mistake in his notes as to how many children Mr Richards had but did not agree that the consultation was rushed. He agreed that it was difficult to obtain a clear developmental history, but that what he did obtain was accurately recorded. (T.727 ff). He agreed that he may have used the word “retarded” when discussing the matter with Rhiannon’s parents, but would only have done so if they did not understand the concept “developmentally delayed”. (T.732) Doctor Rahilly denied being told about Ms Dowton’s opinion that Rhiannon had experienced a fit (T.762). He could not remember any request that Rhiannon be admitted to hospital.

32 I have concluded that the version of the consultation given by Dr Rahilly is more accurate than that given by Rhiannon’s parents. It is clear from her cross-examination that Ms Ennis had little recollection of it. Mr Richards’ recollection seems to have been coloured by his dislike of Dr Rahilly, his belief that Dr Rahilly’s conduct was responsible, at least in part, for his daughter’s condition and a desire to do the best he could to advance his daughter’s case. By way of illustration, his explanation of why he told Dr Rahilly that Rhiannon was not smiling, giggling or grabbing things (T.216-217, 286-287) is improbable. If, as Mr Richards agreed, there had been an argument between him and Ms Ennis in front of Dr Rahilly on these matters, it would have become immediately obvious to him if Ms Ennis had been talking about the past but he was talking about the present.

33 Although Dr Rahilly also had an obvious motive for not telling the truth, his evidence as to the first consultation is fully consistent with his letter to Dr Gibson on 4 October 1999 and with subsequent correspondence. It is consistent with his notes. The only established inaccuracy was in relation to a peripheral matter, ie whether Mr Richards was the father of a child by another woman. The history and details recorded by him so far as they can be independently checked were otherwise accurate. These documents came into existence at a time when litigation was not contemplated.

34 I also have reservations about Mr Richards’ description of Dr Rahilly’s demeanour at the first consultation. It is clear that Mr Richards was upset at the time of the consultation in that he had an argument with Dr Rahilly’s receptionist even before the consultation took place. I also suspect that his adverse description of Dr Rahilly’s demeanour has been coloured by subsequent events. I do accept that the consultation may have been somewhat rushed in that it was fitted into Dr Rahilly’s lunch break at short notice. Despite this, I am satisfied that Dr Rahilly asked the questions which were appropriate for such a consultation and that he accurately recorded the responses which he obtained. That was the opinion of Dr Ingall, a paediatrician qualified by the defendants (report 21.1.02.)

35 In the days following the consultation on 21 September 1999, the test results relating to Rhiannon were received by Dr Rahilly. They were all negative – the Urine Metabolic Profile test, the Routine Biochemistry test, the General Chemistry test, the Haematology test, the Thyroid Function test, the Cytogenetics test and the Ultrasound of the brain.

36 On 27 September 1999 Rhiannon’s parents again took her to see Dr Rahilly. This was a normally scheduled appointment and it was not suggested that it was rushed. Those test results which were to hand were communicated to Rhiannon’s parents. There is some dispute as to what occurred at that consultation. According to Mr Richards, Rhiannon’s rolling of the eyes and tensing was happening more frequently and without any provocation. The evidence of Dr Rahilly was (T.713):

“I asked the parents how things were going. One of the parents, to the best of my memory, her mother, said that she seemed, if anything, a bit more irritable, and that the episodes were happening a bit more often. I asked had they changed in any way, and one of the parents said not really.”

37 As with the first consultation, I prefer the evidence of Dr Rahilly. Had Dr Rahilly been told that the episodes were occurring spontaneously he would have noted this fact because it would be a significant change. His notes do not record such a change.

38 He was cross-examined (T.793) as to his use of the word “more spontaneously” in the letter to Dr Gibson of 4 October 1999. Doctor Rahilly’s answer is instructive.

“A. Well as I have said in the statement, that’s a bad use of, in fact a meaningless use of English which unfortunately I slipped in during a dictation session. Something is either spontaneous or not. What I meant was that as she became more irritable, they were more easily elicited. I agree I should have written that. If they were spontaneous, I would have just said spontaneous. It was a bad use of English when I said more spontaneous. Meaning more easily elicited. If they had been spontaneous that’s what I would have written and told Dr Grattan-Smith.”

39 It was at about this time that Rhiannon was placed in a walker and video film was taken by Mr Richards of her attempting to walk using that piece of equipment. That video was available and relied on at trial. It was one of the video sequences explained to me during submissions.

40 On 30 September 1999 Dr Rahilly telephoned Dr Grattan-Smith, a paediatric neurologist, at the New Children’s Hospital in Sydney. The evidence of Dr Rahilly as to this conversation (T.713) was:

“I said to Grattan-Smith “I’ve seen this girl of” – these are to the best of my recollection my words – “I have seen this child of about eleven months with significant developmental delay, who has recently become irritable and more recently developed a tendency when startled to stiffen up and hold her head back and more recently roll her eyes back. Could I ask you to see her down at the hospital, and would it be best if we arrange an admission for a CT scan and for you to see the child at the same admission and I suppose we should also do an EEG.” Doctor Grattan-Smith said “No, an EEG particularly at this age is not useful for deciding if episodes are fits, that has to be made on a clinical basis”. I said “Well clinically I don’t think these are fits”. He said “Well I’m happy to see her. I feel it would be better to wait until we can get an MRI scan in this situation. I’ll look into the waiting list and when I get your letter I’ll make the final arrangements for admission for further assessment and the MRI scan. I’ll get back to you.” – I think he said sorry, “We will get back to you when we know the date.” And I said “Thank you”.”

41 Doctor Rahilly sent to Dr Grattan-Smith a copy of the letter of 4 October 1999 which he had sent to Dr Gibson. He sent that letter to Dr Grattan-Smith on 4 October 1999, or shortly thereafter. That letter was received by Dr Grattan-Smith (T.826):

“The next thing was the letter I asked him to send to me arrived and there was nothing in that letter that made me change my views, the views that I had garnered from the conversation.”

42 The evidence of Dr Grattan-Smith in relation to that conversation was somewhat different to that of Dr Rahilly (T.825).

43 In a letter to Dr Grattan-Smith of 27 December 1999 Dr Rahilly described the conversation in these terms:

“I’m writing to you about this child to clear up some confusion in my own mind over what I feel is a fairly important matter. You may or may not remember that I rang you shortly after I had seen this child for the first time at the age of 11 months. I will briefly tell you the story of the child who presented with severe global retardation and a tendency when startled to roll her eyes back but no history despite pressing of this happening other than when startled and no head nodding. You may remember that I discussed the possibility of the child having an EEG as well as MRI and seeing yourself and that you told me that it would not be clinically useful at this age. …”

“I discussed the child’s case with Dr Paddy Grattan-Smith and raised the possibility of him seeing the child for further assessment and at the same time arrange CT scan of head and EEG. Dr Paddy Grattan-Smith’s opinion was EEG would not be helpful at this stage and he would prefer an MRI to be performed and undertook to arrange that. …”

“As I remember our discussion you did not think Rhiannon was having seizures and the problem at that time seemed to be global developmental delay with some unusual movement. We, therefore, decided that the most sensible approach would be to arrange for her to come down and have full workup including MRI scan and EEG and other metabolic studies depending on the clinical situation. …”

44 There is a clear discrepancy between Dr Rahilly and Dr Grattan-Smith as to exactly what was said concerning why an EEG was not thought to be useful as of 30 September 1999. There is, however, a significant congruence between the two versions. Both involve a similar background discussion concerning developmental delay. The possible use of an EEG was specifically raised and was rejected by Dr Grattan-Smith because of the clinical assessment by Dr Rahilly that Rhiannon’s unusual movements were not seizures. Whatever the precise words used, it is clear that Dr Grattan-Smith did not recommend an EEG in that conversation because Dr Rahilly did not think Rhiannon was having seizures. Given the circumstances of the conversation, Dr Rahilly’s recollection of its precise terms is probably better than that of Dr Grattan-Smith (T.785.19).

45 It was common ground that there were no EEG facilities available for children in the Dubbo/Orange area and that for an EEG to be carried out, Rhiannon would have to go to Sydney.

46 It was Mr Richards’ recollection that at the consultation with Dr Rahilly on 27 September 1999, Dr Rahilly mentioned that he was going to book Rhiannon for an MRI examination at Westmead Hospital (T.220). That recollection appears to be incorrect in that this decision was not made until 30 September in the course of the conversation between Dr Rahilly and Dr Grattan-Smith. The proposal for Rhiannon to undergo an MRI scan in Sydney was communicated by Dr Rahilly to Rhiannon’s parents after 30 September 1999, probably by telephone. Subsequently when both Ms Ennis and Mr Richards rang the Children’s Hospital at Westmead, they were advised by the hospital that it had no record of any MRI examination having been booked. When this was communicated to Dr Rahilly’s wife (who was his practice manager) she made a booking with the hospital for the MRI examination to take place on 30 November 1999.

47 This appeared to be relied upon in Rhiannon’s case and in the evidence of Mr Richards as an indication of Dr Rahilly being cavalier in his approach to Rhiannon and not caring about her (T.222-224). The more likely explanation is that either the hospital or Dr Grattan-Smith had not reacted to the letter sent by Dr Rahilly. It seems to me that no adverse inferences ought be drawn from that incident.

48 On 13 October 1999, in accordance with Dr Rahilly’s recommendation, Ms Ennis attended the Orana Early Childhood Intervention Centre and was interviewed by a representative from the centre who took a history of Rhiannon’s development up to that time. The notes of the Centre make it clear that the appointment for the MRI scan had been made by this date.

49 Doctor Rahilly saw Rhiannon again on 19 October 1999. On this occasion she was accompanied by Ms Ennis and by a family friend, Mark Lancaster. Mr Lancaster died before the matter came to trial but before his death he provided a statement for use in the proceedings. The statement was in evidence before me.

50 Ms Ennis had no clear recollection of this consultation. Her evidence was that Rhiannon was worse “kept crying, irritable, just getting worse with crying”. In his statement Mr Lancaster recorded:

“(7) On 19 October 1999 I accompanied Judith when she took Rhiannon to see Dr Rahilly. I introduced myself to Dr Rahilly as a friend of the family. When Dr Rahilly was handed Rhiannon’s “blue book” to fill out, he said words to the effect of “What do you want, an essay?”. Dr Rahilly did not write anything in Rhiannon’s “blue book”. Dr Rahilly was played a tape of Rhiannon crying which Mark Richards had recorded. From my observations, Dr Rahilly was not concerned about Rhiannon’s condition on this occasion.”

51 Doctor Rahilly’s evidence in chief on this issue is in his statement:

“(32) I next reviewed Rhiannon on 19 October 1999 when her parents were concerned that she was crying a lot. On examination I noted she had an infected right ear. I explained to her parents that this could be worsening her irritability and tendency to cry. I prescribed Amoxil. I explained that the antibiotic treatment should help settle some of the irritability and crying. At this review her parents mentioned their concern about the fact that cessation in Rhiannon’s development seemed to commence at around the time she was in a day care centre. Her older siblings seemed frightened of the lady providing day care. Whilst there was no sign of non-accidental injury I arranged for a skeletal survey to rule this out as a possibility.”

52 Despite this difference in recollections, nothing particularly turns on this consultation, except that Rhiannon was clearly no better. As Dr Rahilly noted, some part of the irritability could have been due to her ear infection. The “blue book” may have been produced but Dr Rahilly could not specifically recall it. There was nothing remarkable about it and it contained no useful information, not having been updated since late December 1998.

53 On Sunday, 24 October 1999 Mr Richards telephoned Dr Rahilly at his home. Mr Richards’ evidence was (T.228):

54 Doctor Rahilly’s evidence of this conversation was (T.715):

“A. My memory is my wife picked up the phone and told me Mr Richards was on it. I took the phone and said “Hello”. He said words to the effect “Rhiannon’s no fucking better. She’s still crying all the time, whingeing all the time we’ve fucking had enough, something’s got to be done.” I said “I think the best thing is to take her up to the hospital and I will ring them and tell them you’re coming and at least that will give you a break.” And he said to my memory “Right, that’s what we’ll do” or words to that effect.”

55 It became an issue at the trial as to who had suggested that Rhiannon be admitted to hospital. It does not seem to me to matter greatly who made the suggestion except that the evidence of Dr Rahilly was that this was the first time hospitalisation had been discussed by anyone, whereas the evidence of Mr Richards was that he had been suggesting hospitalisation since the first consultation. I am satisfied that this was the first time that hospitalisation was suggested.

56 What does seem clear is that following the conversation with Mr Richards, Dr Rahilly telephoned Dubbo Base Hospital and spoke to a resident or registrar paediatrician and asked that Rhiannon be kept in hospital to give her mother some respite and for observation. Doctor Rahilly faxed a letter to Dr Pryde at the Dubbo Base Hospital setting out his findings in relation to Rhiannon up to that date. The faxed letter was in almost identical form to that sent to Dr Gibson.

57 When Rhiannon’s parents arrived at the Dubbo Base Hospital, the hospital refused to admit Rhiannon because it did not have a bed for her, it did not have a referral from Dr Rahilly and she was not acute. After attempts to quieten Rhiannon had failed, this exchange took place between Mr Richards and the admitting doctor at the hospital:

“A. I told him if he made me take her home I would smack her in the head with a fucking hammer.

58 Doctor Rahilly telephoned the Dubbo Base Hospital on at least two further occasions on 24 October 1999. Doctor Rahilly had no clear recollection of what was said. The hospital notes, however, fill in those gaps.

59 At approximately 1620 on 24 October 1999 the notes record a conversation between a Dr Hepi and Dr Rahilly. Doctor Rahilly reported on the test results which had been carried out in relation to Rhiannon. He mentioned the suggestion which had been made at the last consultation of a non-accidental injury at the day care centre. Doctor Hepi was told that Rhiannon had been booked for an MRI and neurological review with Dr Grattan-Smith at Westmead Children’s Hospital on 30 November.

60 The hospital notes record that at 1930 a conversation took place between Dr Rod McClymont, the locum paediatrician at the hospital, and Dr Rahilly. Doctor Rahilly told him that Rhiannon was suffering from gross developmental delay and that she had last seen Dr Rahilly a week before. Mention was made of the ear infection and the fact that a skeletal survey had been ordered to check on whether non-accidental injury had occurred at the day care centre. Once again the results of the various tests were communicated by Dr Rahilly. Doctor McClymont specifically noted that Rhiannon was twelve months old with severe developmental delay of unknown cause. The parents were at the end of their tether and were concerned that they may harm Rhiannon as she was crying all the time. It is not clear to me whether that note records an impression of Dr McClymont or whether it records something he was told by Dr Rahilly. Doctor McClymont was told about the planned admission under Dr Grattan-Smith at the Children’s Hospital for 30 November. As in the previous conversation with Dr Hepi, the possibility of an inter-hospital transfer to expedite that process was discussed. The letter which Dr Rahilly faxed to Dr Pryde was apparently sent after this conversation, probably on the morning of 25 October.

61 To the extent that it is relevant, I am satisfied on the basis of the notes of the Dubbo Base Hospital that the recommendation for hospitalisation came from Dr Rahilly. The suggestion implicit in the evidence of Mr Richards that Dr Rahilly was not particularly concerned about whether Rhiannon went to hospital or not and was generally unhelpful is difficult to reconcile with the hospital notes. These notes show a doctor interested in his patient’s progress and trying to assist her by making available all the information which he had. That needs to be looked at against the fact that Dr Rahilly did not have admitting rights to the Dubbo Base Hospital and was not able to be directly involved in Rhiannon’s management while she was at the hospital.

62 A further conversation took place on 26 October between Dr Rahilly and a Dr Hart from the Dubbo Base Hospital concerning Rhiannon. As with the earlier conversations, Dr Rahilly had no clear recollection of its content. Once again the hospital notes are of assistance:

“Discussion with Dr Rahilly (see faxed letter). He had arranged for neurologist to review who did not think an EEG worthwhile. Can be inconclusive at this age. If he thought the eye rolling was fitting he would treat with anti-epileptic medication anyway…”.

63 The notes of the Dubbo Base Hospital concerning Rhiannon show that her condition was deteriorating. Rhiannon was placed on a “fitting/behavioural chart” on 25 October, when her eyes were observed to roll back with slight jittering of the body. Doctor Hardacre on 26 October noted episodes which were described as “eye rolling” and “dazed” which were very brief. Upon her discharge from the Dubbo Base Hospital on 27 October 1999, Dr Hardacre recorded the following management plan:

· Audiometry.

· Refer to Sydney Neurologist (Orange unable to do EEG due to young age).

· Discharge today.

· Follow up by Dr Rahilly.

64 The entries on the fitting/behavioural chart were:

Date	Time	Duration	Description of Episode
25.10.99	1230	5 seconds	eyes rolled; slight jitter of body
1600	2-3 seconds	eyes rolled back in head
1630	2-3 seconds	eyes rolled back in head
1800	10-15 seconds	dazed and unresponsive
1940	20 seconds	dazed unresponsive, pupils dilated
26.10.99	1600	5 seconds	dazed unresponsive to stimuli
1800	10 seconds	staring into space, unresponsive to stimuli
0200	10 seconds	dazed and unresponsive
0230	60 seconds	dazed and unresponsive and full body jerk
27.10.99	0800	20 seconds	staring into space unresponsive

65 Rhiannon was discharged from the Dubbo Base Hospital at 1445 hours on 27 October 1999. Dr Rahilly was not contacted by the hospital staff regarding her discharge, nor notified of it (T.749.32). Upon her discharge the hospital provided Ms Ennis with an envelope to be given to Dr Rahilly. The precise contents of that envelope were never identified, but it is clear from the evidence of Dr Rahilly that included in the envelope was a discharge summary from the Dubbo Base Hospital.

66 The nursing notes for the afternoon of 27 October record:

“Seen by paediatrician. Hearing test and MRI scan arranged – see previous notes … Mother has just arrived in ward to take Rhiannon home. All appointments given and explained to mother. For follow up with Dr Rahilly – mother to make appointment.”

67 The evidence of Ms Ennis was that she next saw Dr Rahilly with Mr Lancaster on 28 October and gave the envelope to him. That evidence was shown to be incorrect. The next consultation with Dr Rahilly did not occur until 2 November 1999 – six days later. During the intervening period, Rhiannon was taken to the Orana Early Childhood Intervention Centre on two occasions – 28 October and 1 November – and was seen by Dr Gibson on 29 October. Regrettably no attempt seems to have been made to communicate to Dr Rahilly the contents of the envelope, ie the discharge summary from the Dubbo Base Hospital, and the observations made of Rhiannon while at the Dubbo Base Hospital and recorded on the “fitting/behavioural chart”.

68 Doctor Rahilly was handed the envelope from the Dubbo Base Hospital at the consultation on 2 November 1999. He was told on that occasion that the eye rolling episodes were becoming more frequent and were occurring even when Rhiannon was not frightened. He was told that head nodding was also occasionally seen. After reading the discharge summary from the hospital, Dr Rahilly contacted the paediatrician at the Dubbo Base Hospital and discussed the contents with him. Doctor Rahilly advised Ms Ennis that Rhiannon should be urgently admitted to the Children’s Hospital at Westmead as soon as possible.

69 In order to have Rhiannon admitted to the Children’s Hospital, Dr Rahilly telephoned Dr Grattan-Smith’s Registrar – Dr Bloomfield – and advised him that admission for Rhiannon was required urgently and could not be left until 30 November 1999. Doctor Bloomfield undertook to arrange admission as soon as a bed was available.

70 In his evidence Dr Rahilly identified the head nodding and the spontaneity of the episodes on occasions where Rhiannon had not been startled or frightened as the considerations which led to him arranging for her urgent admission to the Westmead Children’s Hospital.

71 Doctor Rahilly played no further part in Rhiannon’s treatment after 2 November 1999. As indicated, he did subsequently correspond with Dr Grattan-Smith, Professor Buchanan and Mr Richards and had a further conversation with Mr Richards. Insofar as treatment was concerned, his contribution ceased at this point in time.

72 On 3 November 1999 Mr Lancaster drove Ms Ennis and Rhiannon from Dubbo to the Children’s Hospital at Westmead. The trip took approximately five hours. Ms Ennis in her evidence said that she was required to wait for ten hours before Rhiannon was admitted. That estimate was confirmed by Mr Lancaster in his statement. It was not supported by the hospital notes which indicated a period of approximately five hours between Rhiannon arriving at the hospital and being admitted.

73 Upon admission Dr Bloomfield obtained from Ms Ennis a history concerning Rhiannon up to that point in time. The accuracy of that history was a matter of considerable controversy. On behalf of Rhiannon it was submitted that the history was unreliable because of the tiredness and emotional state of Ms Ennis. Certainly parts of the history recorded by Dr Bloomfield are at odds with the evidence at trial of Ms Ennis and Mr Richards. I will return to that issue in more detail when considering the extent of any developmental delay affecting Rhiannon during 1999.

74 Upon her admission Rhiannon came under the care of Dr Grattan-Smith. On 4 November 1999 she was commenced on Nitrazepam (Mogadon) .5 mg twice daily. An EEG test was carried out which showed hypsarrythmia. A preliminary diagnosis of “infantile spasms” was made. On 5 November 1999 an MRI scan of the brain was carried out.

75 Following the introduction of Nitrazepam no seizures were recorded between 6 and 8 November. On 8 November the Nitrazepam was increased to 1 mg twice daily. On 9 and 10 November seizures were again recorded – two on 9 November and three on 10 November.

76 On 10 November a second EEG took place. The result remained grossly abnormal with a picture of modified hypsarrythmia. It was the practice of the Children’s Hospital to video patients while they were undergoing an EEG. On this occasion the video revealed Rhiannon actually experiencing a fit. It was generally agreed that the fit was subtle and difficult to identify unless one was an expert. The video of this fit was an exhibit at trial.

77 Following this EEG the Nitrazepam dose was increased to 1 mg in the morning and 2 mg at night. Rhiannon was commenced on oral Prednisolone (a steroid) 20 mg per day. Pyridoxine (vitamin B6), 100 mg daily, was also added. The reason for the increase in Nitrazepam was in case the initial seizure-free period after admission represented a positive response to that substance.

78 Pyridoxine was given in case Rhiannon had Pyridoxine dependent seizures. This is a rare condition where the seizures are resistant to standard anti-epileptic drugs but respond to Pyridoxine. Certain forms of seizures are known to stop abruptly with the introduction of Pyridoxine for reasons currently unknown to medical science. The Pyridoxine was continued in a dose of 100 mg per day for three weeks and then stopped as there was little response.

79 By 16 November there had been no significant response over six days to the Nitrazepam, Prednisolone and Pyridoxine. It was the evidence of Dr Grattan-Smith that at this point in time he considered the use of ACTH (a steroid) but since it had more side effects than oral Prednisolone and required injections and monitoring, he deferred its introduction. The Prednisolone had only been used for six days and it was still possible that it would produce a positive response.

80 Doctor Grattan-Smith decided at that point in time that Valproate (Epilim) ought be introduced to see whether Rhiannon would respond to it. He planned to introduce that treatment subject to a discussion with Rhiannon’s parents as to its use. There is no evidence either way as to such a discussion but Rhiannon was commenced on Valproate on 22 November 1999. The initial dose was 100 mg per day, half the usual minimum therapeutic dose. The reason why Valproate was introduced was that studies had shown it to be effective in the treatment of infantile spasms and epileptic encephalopathies in older children, and it had also been shown to be effective against generalised tonic clonic seizures and complex partial seizures.

81 On 26 November, after three weeks on Nitrazepam, two weeks on Prednisolone and Pyridoxine and four days on Valproate, Rhiannon commenced to be treated with Synacthen (synthetic ACTH). Rhiannon was weaned off the Prednisolone from this point in time. The treatment with Synacthen was interrupted briefly when Rhiannon developed a minor viral infection but was recommenced on 1 December 1999. As indicated, the treatment with Pyridoxine ceased at about this time, ie 1 - 2 December 1999.

82 Biotin (another vitamin) was introduced into her treatment on 12 December. This was done (like the Pyridoxine) to address the possibility of a vitamin deficiency dependent epilepsy. On 13 December 1999 the Valproate dose was increased.

83 Rhiannon was discharged from the Children’s Hospital on 17 December 1999. She had been trialled on Mogadon throughout her hospitalisation (six weeks), Prednisolone (for a little over two weeks), Valproate (four weeks) and ACTH (three weeks). She had also been treated with the vitamins Pyridoxine and Biotin.

84 On 16 December 1999 Rhiannon, accompanied by Ms Ennis and Mr Richards, consulted Professor Buchanan. There is a dispute as to Rhiannon’s condition at the time of consultation. Professor Buchanan described Rhiannon as “vegetative” even though he did not examine her. Such a description is inconsistent with the notes of the Children’s Hospital and his own correspondence relating to the consultation.

85 Following that consultation, Professor Buchanan wrote a letter to Dr Grattan-Smith dated 21 December 1999 and described what had occurred:

“Thank you for your time on the phone about this youngster. I saw her with her parents on the 16th of December. The story is well known to you and therefore I won’t go over it, other than to say that I spent time with them discussing the nature of infantile spasms, and the considerable likelihood that Rhiannon will end up significantly developmentally delayed.

At the present time, she is on;

Epilim 200mg bd

Biotin 10mg a day

Synacthen .125mg every third day

Nitrazepam 1.0mg bd

There has been a recent increase in Epilim and Biotin has been introduced and in conjunction with one, or the other of these, there has been a significant improvement in alertness. I assume that this reflects an improvement in her EEG.

I suggested to the family that they leave things alone or perhaps, if they so wished, increase the Epilim by 1mg a week so that over a month, she might be taking 7 ml bd. She is due to see you on the 17th January for a further EEG and a consultation and the family asked if they could come here on the 18th, which is fine by me, if it is OK by you. The only other option that crossed my mind was trying some Sabril, but I would be loath to add that to the present quite extensive cocktail. The Mogadon doesn’t seem to have done a great deal and I would wonder if it wouldn’t be worth withdrawing that at a later date and perhaps the Biotin if things don’t improve over the next month.

I hope these thoughts make some sort of sense.”

86 The discharge summary from the Children’s Hospital recorded:

“Rhiannon has made some minor clinical improvements over these past three days, with improved alertness and responsiveness. She appears unsettled for periods, but is visually more attentive and moving her limbs more vigorously, but we have stressed to her parents the importance of waiting for more long-term changes before drawing any conclusions. Her intake of food and fluid does fluctuate and tends to deteriorate during periods of more constant seizures, but usually with time and patience she is managed without resorting to nasogastric tube feeds.

Review by Professor Buchanan was arranged at parents’ request on 16.12.99, who agreed with the current management plan, suggesting consideration be given to trialling Vigabatrin in the future if control is not gained otherwise.”

87 In relation to future treatment, the following was recorded:

“Plans for medication changes:

Continue Synacthen at current rate for total of two months (commenced 26.11.99) followed by switching to weaning dose of Prednisone.

Increase Valproate dosage to 200 mg bd over the next few days.

Continue Biotin for one month (commenced 12.12.99) and then review.

Consider introduction of Lamotrigine if further improvements are not seen in the coming weeks (protocol available if required).

Vigabatrin be used as a final attempt at seizure control, if it has not occurred otherwise.”

88 The discharge summary was signed by Dr Bloomfield. By way of follow up, it recommended transfer to the Orange Base Hospital prior to returning home and referral to the Orana Disability Services and the Department of Community Services since significant support services would be required for Rhiannon’s return home. It noted that re-admission had been booked for 18 January 2000 for review by Dr Grattan-Smith, Professor Buchanan and EEG. The most recent EEG before discharge (14.12.99) continued to be grossly abnormal with features of a severe epileptic encephalopathy. The discharge summary contained a diagnosis of “refractory seizure disorder with severe global developmental retardation”.

89 There was some disagreement between Professor Buchanan and Mr Richards as to what Professor Buchanan said in the consultation of 16 December. It was Mr Richards’ evidence that Professor Buchanan had remarked “Why isn’t she on Sabril?” or “She should be on Sabril”. Professor Buchanan had no recollection of saying that. Since Sabril was not commenced until 10 March 2000 by Professor Buchanan, I am of the opinion that no such remark was made by Professor Buchanan on that occasion. Mr Richards gave evidence that he showed a video of Rhiannon on that occasion. This evidence was shown to be incorrect.

90 It was Mr Richards’ evidence that Professor Buchanan told him on that occasion that if Rhiannon had had an EEG earlier her outcome might have been considerably better than it was. The only evidence from Professor Buchanan as to what he said about an EEG on 16 December is in his letter to Dr Rahilly of 20 January 2000.

“I am not sure how best to answer your questions from your letter, but undoubtedly the EEG has a role in the first year of life, as it is in every other age group, but needs to be interpreted relative to the history. It is not clear as to whether there was evidence of seizure activity earlier on in this child, and perhaps that’s why an EEG was not done.

I don’t recollect having specifically said to Mr Richards “that if only an EEG had been done earlier” that things might have been different. I think I did express surprise with hindsight, having heard the story and being aware of the diagnosis, that perhaps something had not occurred sooner. Whether that would have altered the outcome, is another matter altogether. …”

“I have recently talked to the father who said that both yourself and the Registrar told him that “if only” we had performed an EEG and had the New Children’s Hospital staff interpret it much earlier, then the fits could have been diagnosed and treated earlier.

I was wondering whether this was indeed what was said to the parents and, as I say, what your feelings are about an EEG at this stage.”

91 I am of the opinion that Professor Buchanan certainly did say something about why an EEG was not carried out earlier, but whether he did so in the terms which Mr Richards communicated to Dr Rahilly is not clear, particularly the proposition that had an EEG been carried out earlier then Rhiannon’s outcome would have been better.

92 As can be seen from the above paragraphs, following the consultation with Professor Buchanan on 16 December, Mr Richards telephoned Dr Rahilly and requested that he make available Rhiannon’s medical records. In the course of that conversation it was Mr Richards’ evidence that he said to Dr Rahilly “She should have had an EEG earlier”. He said that Dr Rahilly was short with him but phoned him the following day to apologise for being abrupt and to explain why an EEG was not arranged earlier.

93 Dr Rahilly’s evidence was that only one telephone conversation took place which was a bad connection. It matters not which version is correct. The importance of the conversation or conversations is that they proved to be the catalyst for the letters from Dr Rahilly to both Professor Buchanan and Dr Grattan-Smith on the issue of the need for an EEG and the replies which Dr Rahilly received. That correspondence provides some contemporaneous evidence of the thinking of the major protagonists at the time.

94 For completeness it should be noted that Mr Richards denied that he had ever received the letter referred to in para 52 of Dr Rahilly’s statement. He did, however, receive the letter of 27 December 1999 (PX 1 document 20). Since both letters were sent within a matter of days of each other to the same address, it would be surprising if one letter arrived but the other did not. I am of the opinion that Mr Richards received both letters. The contents of the letter of 27 December 1999 from Dr Rahilly to Mr Richards makes more sense in the light of the earlier letter which appears to have been prepared on 21 December 1999 and which is set out in full in para 52 of Dr Rahilly’s statement and in his records (PX 1 tab 21).

95 On either 19 or 29 November a conversation took place between Mr Richards and Dr Bloomfield. In the course of that conversation Dr Bloomfield apparently said:

“We are cautiously optimistic. We are running out of options. We have already tried a few drugs. There is one drug but they don’t want to give it to her at this stage because it causes vision problems. … Peripheral vision problems, however, there are other medications we can try first.”

96 It was the evidence of Mr Richards that at some time after Rhiannon’s discharge from the Children’s Hospital, he suggested that both Dr Grattan-Smith and Professor Buchanan treat Rhiannon. He was told (apparently by Dr Grattan-Smith) that only one doctor could be the treating doctor and that he should choose whom he preferred. He chose Professor Buchanan.

97 Rhiannon was admitted to the Orange Base Hospital on 17 December and discharged on 21 December. There were consultations with the general practitioners, Dr Frater and Dr Gibson. There were three outpatient attendances at the Dubbo Base Hospital. Nothing of significance appears to have occurred between the period of her discharge from the Children’s Hospital and when she next saw Professor Buchanan in January 2000. Rhiannon appears to have continued on the same regime of medication as when she was discharged from the Children’s Hospital.

98 Rhiannon was seen by Professor Buchanan on 18 and 19 January 2000. She underwent a further EEG on 17 January. The best record of what occurred at those consultations is Professor Buchanan’s letter to Dr Gibson of 20 January 2000:

“As you know Rhiannon is severely developmentally delayed with a refractory seizure disorder which looks as though it has its basis in infantile spasms. Original EEG’s showed hypsarrythmia and were very disorganised. They were not however completely typical of infantile spasms. She has had a number of medications whilst in hospital which seem to have had little effect, and when I initially saw her, she was taking Epilim 200 mg bd, Biotin 10 mg a day, Synacthen .125 mg every third day and Nitrazepam 1mg bd. We reviewed things on the 18th of January when she was still taking this medication and at that time was having seizures daily, mainly after awakening. Her eyes would roll, her mouth opens and she stares. She may make some tongue rolling movements. There has been some improvement in alertness over the preceding month and she was following visually to some extent. She was feeding quite well. An EEG was conducted on the 18th January and was slightly better than the preceding one, but the improvement might best be described as modest.

The family had asked if they could attend here in future and in discussion with Dr Grattan-Smith, we agreed to do this.

As a result I saw them on the 19th January and we have agreed to:

1. Cease the Biotin.

2. Cease the Synacthen and move to Prednisone.

3. I attach a dosage schedule increasing the Epilim and withdrawing the Synacthen over the next month and moving the Mogadon to a single night time dose. By the 19th February she should be taking 6 ml bd of Epilim and be on half of a 5 mg Mogadon tablet at night. If we could simplify things in this way, we could then look at possibly using alternative medication such as Sabril or Lamictal to try and get improved seizure control. To add something to the existing four medications, is frankly too complex. I accept that these modifications may be associated with a deterioration of seizure control and I have asked the family to contact me should that occur. Otherwise I hope to see them in one month.”

99 That subsequent consultation took place and was described by Professor Buchanan in a letter to Dr Gibson of 29 February 2000:

“I saw Rhiannon on 24 February with her parents, Mark and Judy. At that time, she was off her Predisone taking 6 ml of Epilim syrup bd and Mogadon 2.5 mg nocte. On this combination, she was much more alert, was interacting somewhat with her environment but continues to have seizures which consist of opening her mouth and tongue rolling and also episodes where her eyes will deviate to the right and flicker. The situation is far from perfect but we are ahead of where we started out from.

I attach an overall plan which consists of:

1. Try to increase the Mogadon to 2.5 mg bd. If this makes her unduly drowsy, we would then move to -

2. Trying Mogadon as a 5 mg dose nocte. If with either of these approaches she is able to tolerate the drug but the seizures persist unchanged, we would then move to -

3. Reducing the Mogadon back to the present dose of 2.5 mg nocte and commencing Sabril which comes as a 500 mg sachet. This would involve half a sachet (250 mg) from day one to day four, increasing to 250 mg bd from day four to day seven and then increasing to 500 mg mane and 250 mg nocte from day seven onwards. The plan is to review things in a month whichever way this works out.

Sabril is the preferred drug in infantile spasms which is the underlying problem that Rhiannon has, although she is not absolutely typical of childhood infantile spasms. The main problem with Sabril is that one can get a loss of peripheral vision, but her parents are aware of this risk and as she is going to be significantly handicapped anyway unfortunately because of her brain “disorder”, this particular side effect is of lesser importance than it might otherwise be. Certainly if the Sabril was to bring the seizures under control, it would be worth persisting with but if not, we would look at moving to Lamictal. Review is planned in a month.”

100 Sabril was in fact introduced to Rhiannon’s treatment on 10 March 2000. The letter of Professor Buchanan to Dr Gibson of 29 March 2000 needs to be read against that background.

“I saw Rhiannon again on the 24th March. As you know, we had introduced Sabril and she became quite drowsy on this and you reduced the dose somewhat. When I saw her, she was taking 125 mg bd plus Epilim 6 ml bd and 2.5 mg of Mogadon nocte.

Overt seizure control is undoubtedly better than it was and would appear to relate to the Sabril. As a result, I have suggested increasing the Sabril to 250 mg mane and 375 nocte and reducing the Epilim to 4 ml bd by the 23rd April. I think the Mogadon could be ceased as it really hasn’t contributed greatly. We hope to review things in mid-May, having had an EEG the day before.

The situation is very far from perfect as you know and Rhiannon’s father Mark is quite realistic about the position. He asked me directly if I thought that she would ever walk or speak and I felt obliged to say that I doubted that she would really achieve either, at least not in the foreseeable future. He then began talking about wheelchairs and reorganising his four-wheel drive to accommodate one and so on. I did suggest to him that he was perhaps a little premature, but he clearly has understood that the situation is severe and is not going to improve easily, if at all.

Depending upon how things are next time we review the situation, it might be worth looking at introducing some Lamictal which is quite often a reasonably good combination with Sabril in this particular type of epilepsy.”

101 The next letter from Professor Buchanan to Dr Gibson was dated 25 May 2000:

“I saw Rhiannon again with Mark and his mother Lorraine on the 19th May. She had had an EEG done by my colleague Ernest Somerville the day before and I am glad to report that there was no epileptiform activity at all on it, but there was some slowing of her background rhythms which is not surprising considering her underlying problem and the medication that she is on. At the time, that was Sabril 250 mg mane and 375 nocte and Epilim suspension 4 ml bd.

Seizure control has improved dramatically with the last seizure being on the 30th April and the one prior to that, the 13th April. On examination, she weighed 8 kgs and her head circumference was 44.5 cm which is on the second percentile. There has been significant improvement in her alertness and she is much brighter, rolls over and I suspect follows light. She smiles and interacts to some degree. A rough assessment would be that she is functioning at a three-four month level. Her developmental improvement represents the improvement in seizure control, but clearly there is significant brain damage to account for her profound developmental delay as it is now.

I have suggested increasing the Sabril to 250 mg mane and 500 mg nocte and leaving the Epilim unchanged with review in August or sooner if necessary.

I had a good discussion with Mark about her development and thoughts for the future. In essence I have stressed that her development is very significantly delayed and the outlook for developmental progress has to be guarded. However having got the seizures under control, she at least stands a chance of developing the best of such ability as she has.”

102 The last letter which I propose to set out is that from Professor Buchanan to Dr Gibson of 5 July 2000:

“It was a pleasure to see Rhiannon again with Mark and Judy on the 30th June. There really has been a dramatic improvement. There have been no seizures noticed in the last couple of months and although she remains significantly developmentally delayed, she is much more alert, is interested in her surroundings and is making an attempt to crawl. She does not sit and there is still some head lag. Her head circumference is static at 34.5 cms. Prior to my seeing her, she had been to the North Rocks Assessment Centre for the blind who felt that her vision was probably adequate.

In view of the progress and the fact that Mark and Judy are back together again, I thought it would be wise just to leave things alone with her medication Sabril 250 mg mane and 500 mg nocte and Epilim 4 ml bd. There is no evidence of any side effects and as she is progressing well developmentally, it seems pointless to rock the boat. Review is planned in October or November whenever would suit the family.”

103 I have replicated the letters from Professor Buchanan to Dr Gibson because they provide a relatively objective description of how Rhiannon was progressing during the first half of 2000. There is a dispute between the parties as to whether Vigabatrin (Sabril) did in fact produce an improvement or whether that improvement was coincidental with the introduction of Vigabatrin. Even if Vigabatrin did produce an improvement, the extent of that improvement is a matter of dispute, ie whether the improvement was immediate and dramatic.

104 As of February 2001 Rhiannon was walking with help and was still seizure free. Because of the eye problems associated with it, Professor Buchanan was planning to withdraw Vigabatrin in due course.

Rhiannon’s development

105 A matter which was significantly in dispute was whether Rhiannon was developing normally until August/September 1999. There are a number of reasons why this question is important. It impacts on the accuracy of the diagnosis of Dr Rahilly. It also impacts on the question of liability in that Rhiannon’s claim is that earlier diagnosis and treatment could have made a difference to her long-term outcome.

106 Its importance on that issue was summarised in the plaintiff’s submissions as follows:

“If, as the defendants maintain, Rhiannon was destined to be just as disabled as she now is even if her infantile spasms had been diagnosed and treated earlier, then Dr Rahilly and Dr Grattan-Smith’s negligence caused her no harm. But if, as the plaintiffs maintain, Rhiannon could have been better off neurologically than she now is with earlier diagnosis and treatment then the defendants’ negligence did cause her some injury loss and damage.” (Submissions p 88.)

107 The submissions on behalf of Rhiannon relied upon the evidence of her parents given at the trial and on the evidence of family friends, who had the opportunity to observe Rhiannon since her birth. The evidence of Dr Borg to the effect that she could judge if a child was abnormal by looking at it and she didn’t think that Rhiannon was abnormal (T.61.6, 66.20) was also relied upon.

108 The defendants in their submissions relied upon what was described as “contemporaneous histories” given by the parents, on the notes of Doctors Frater and Gibson, and on the video material of Rhiannon in the pink jumpsuit and using the walker as that material was interpreted by Professor Buchanan, Doctors Antony, Hopkins and Wise.

109 The evidence of Ms Ennis at trial was that Rhiannon had developed like her other three children, had smiled from six-eight weeks of age, laughed, babbled, would reach out for objects such as keys, rattles, dummies and toys and hold onto them, could roll from front to back and from back to front, responded to voices and to faces and was trying to crawl. She had in effect noticed no abnormality with Rhiannon’s behaviour until shortly before she consulted Dr Rahilly. It was appreciated by both sides that her evidence was important because she was Rhiannon’s primary carer.

110 The defendants challenged her evidence at trial by referring to the note of Dr Frater of 6 September 1999 that Rhiannon was “not hearing and not crawling yet”. The court was asked to infer from that and the further note “? needs paeds assessment” that either Ms Ennis or Dr Frater had some concern about Rhiannon’s developmental progress at the time of that consultation. Although Ms Ennis was definite that nothing was said to her about seeking a paediatric assessment (T.114.3), it is clear from her evidence concerning this consultation that she did not have a particularly good recollection of it (T.112-114). I draw no adverse inference from the fact that Dr Frater was not called by either side.

111 It seems clear from the records of Dr Gibson relating to the consultation of 20 September 1999 (paras [20] – [21] hereof) that developmental delay was a concern of his at that time. When his note is taken with that of Dr Frater it seems likely that developmental delay was a concern when Dr Frater was consulted and that the recollection of Ms Ennis is incorrect on that issue. I draw no inference adverse to either side from the fact that Dr Gibson was not called.

112 The history given by Ms Ennis to the Orana Early Childhood Intervention Centre is not consistent with her evidence at trial. On 13 October 1999 she gave this history:

“Rhiannon well during early stages, not much response to parents - > limited smiling, not interested in people, not interested in toys, limited looking around …”

245 Dr Wise defined the cryptogenic category to be where a cause had not been found for seizures and development up until the time of onset of the seizures had been normal. Accordingly he did not consider that Rhiannon suffered from cryptogenic seizures. He said:

“Overall greater than ninety percent of such children will prove to be very significantly handicapped in the long term, whatever the cause. “Cryptogenic” spasms are sometimes defined as spasms for which no cause has been determined despite detailed investigations – using these criteria perhaps forty percent of cases would be so classified, and the outcome of the group so defined is better, but not much different from the group overall. Other workers define cryptogenic cases as those for whom no cause can be found but who additionally have developed normally up to the time of onset of the attack. This group (perhaps fifteen percent – twenty percent) are much more likely to run a favourable course, but still fifty percent will finish up with significant handicap. Rhiannon did not fall into this category. …

Dr Appleton has stated, and I agree, that there has been disagreement in the literature about whether delay in diagnosis and treatment affects outcome, and no papers answer this question definitively. My experience has been that many patients whose seizures have responded quickly and who have been diagnosed early have still gone on to have significant handicaps, and I have presumed that the underlying cause of their seizures, which has produced both handicap and the fits, has been unaffected by the successful treatment of but one of the symptoms of their malady. This is the view that many of my colleagues take, and it is a view shared by Dr Appleton”. (Report 16 March 2002, p 3).

246 Dr Antony agreed with Dr Hopkins that the combination of mixed seizure types and pre-existing developmental delay was a particularly adverse indicator. In that group the prognosis for both seizures and continued significant developmental difficulties was virtually one hundred percent. (Report 27 February 2003)

247 Dr Manson defined cryptogenic seizures as those which started in a child who was developmentally normal until the time of the onset of spasms. He did not place Rhiannon in that category. He gave this evidence:

248 Dr Burke approached the matter from a slightly different perspective:

249 The evidence of Professor Buchanan on this question is somewhat equivocal and rather surprising.

250 A little later Professor Buchanan gave this evidence:

251 There is another way of looking at this question. If Rhiannon had been diagnosed with seizures in early October, she would undoubtedly have been treated in the same way and with the same medications as occurred when she was admitted to the Children’s Hospital in early November. We now know that those medications were not successful in stopping the seizures. There is nothing to suggest that had that treatment been administered four weeks earlier than it was, it would have been any more successful. Even if Professor Buchanan had been brought into the matter four weeks earlier than he was, it is clear from his answers that he did not see there being any particular urgency in administering Vigabatrin. Accordingly I do not see how the delay of four weeks, for which it is alleged Dr Rahilly was responsible, could have had any significant effect on Rhiannon’s ultimate outcome.

252 Because of the findings, which I have already made as to developmental delay in Rhiannon, and taking into account the relatively uncontroversial proposition that the spasms were of the mixed seizure type, I am not persuaded that a four-week delay in the diagnosis of Rhiannon had any effect on the outcome of her condition.

253 In relation to the claim against the Hospital, two causation issues arise. The first is whether Rhiannon’s parents would have chosen the Vigabatrin option had all of the treatment options been explained to them. The second is whether the administration of Vigabatrin on 10 March 2000 in fact brought about a cessation of Rhiannon’s seizures and would have done so if administered earlier.

254 It was submitted on behalf of Rhiannon that the hypothetical discussion concerning treatment options should have occurred some time in the first half of November. Had such a hypothetical conversation taken place, Rhiannon’s parents would have opted for Vigabatrin as the appropriate treatment.

255 To support that proposition reliance was placed upon the evidence of Ms Ennis at T.174.40:

256 Reliance was also placed upon the evidence of Mr Richards when he was recalled after the conclusion of the evidence (T.1226-1228). The evidence of Mr Richards was that had treatment options been explained to him, he would have chosen Vigabatrin.

257 The evidence of Mr Richards to which I have referred, is of little value. He understood how important that answer was to Rhiannon’s case. Although his evidence on this question may well have been truthful, it suffers from the problem identified by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 246 (note 64) and restated in Rosenberg v Percival (p 443, para 25). The reliability of such evidence needs to be assessed by reference to other evidence.

258 It should also be noted that the description of the treatment options when the question was asked of Mr Richards was extremely favourable to Vigabatrin, particularly the proposition that other treatments might take between six-ten weeks to produce results whereas Vigabatrin was likely to produce a positive result within one week. That was certainly not a proposition which Dr Hopkins supported (para [212]).

259 The defendants submitted that Rhiannon’s parents had consistently followed the recommendations of Dr Grattan-Smith and there was no reason to think that had he engaged in the proposed hypothetical discussion, they would have acted otherwise than in accordance with his recommendations. Dr Grattan-Smith’s evidence was that he would have expressed a strong preference for the use of Mogadon and steroids before Vigabatrin. It was not only open to Dr Grattan-Smith to express a preference for a certain regime of treatment, he was obliged to do so if he thought that regime was best for the plaintiff.

260 Ms Ennis was the parent with the primary responsibility for Rhiannon’s care. It was noted that she was having trouble understanding the explanations given by the doctors to her. Such explanations often had to be given over the phone. It was submitted that she would almost certainly have accepted the recommendations of Dr Grattan-Smith. This evidence was given by Ms Ennis.

Q. Is it fair to say you thought they were the people in the best position to decide which medications ought to be tried?

261 The defendants relied upon the following evidence from Mr Richards:

262 The defendants also submitted that the evidence of Ms Ennis, upon which reliance was placed (para [255]), was taken out of context. The extract was used as if it referred to a recommendation from Dr Grattan-Smith while Rhiannon was under his care. The context showed that the answer referred to a much later period when Rhiannon was under Professor Buchanan’s care and concerned a hypothetical conversation with Professor Buchanan at that point in time.

263 Dr Hopkins was of the opinion that patients usually accepted the doctor’s recommendations (para [226]) and:

264 I am not satisfied that had a hypothetical conversation taken place in November 1999 between Dr Grattan-Smith and Rhiannon’s parents, or either one of them, in which he had expressed a strong preference for medications other than Vigabatrin that his recommendation would have been rejected.

265 The defendants submitted that there was no evidence that Rhiannon responded to Vigabatrin and that her subsequent improvement was coincidental. Alternatively the defendants submitted that it was not established that had Vigabatrin been administered earlier, the same sort of improvement would have incurred.

266 The evidence of Mr Richards was that Rhiannon’s condition improved after seven days of being on Vigabatrin. Rhiannon was more focused and more active and had fewer seizures. In relation to this issue I prefer the sequential reports of Professor Buchanan, which were prepared before litigation was contemplated, and which provide a more objective assessment of how Rhiannon was progressing (paras [98] – [102]).

267 The letters to Dr Gibson of 29 March and 25 May 2000 seem to indicate that Rhiannon did respond to Vigabatrin, although not as rapidly as was suggested by Mr Richards. The most significant improvement seems to have occurred after 29 March. After fourteen days it was noticed that seizure control was better. She suffered her last seizure on 30 April. An EEG of 18 May showed no epileptic activity, although there were other abnormalities.

268 The correspondence from Professor Buchanan indicates some improvement in Rhiannon even before the administration of Vigabatrin, although her improvement was more rapid after that medication was commenced. I am satisfied that the administration of Vigabatrin on 10 March and thereafter either led to the cessation of Rhiannon’s seizures, or accelerated the improvement which Professor Buchanan had already noted. I reject the submission by the defendants that Rhiannon’s improvement in March, April and May 2000 was purely coincidental with the introduction of Vigabatrin.

269 That does not end the matter. There was persuasive evidence from the defendants’ experts that the natural history of seizures in infants is that they eventually settle down, usually within two years. This was the evidence of Dr Antony (report 8 January 2002, p 5), of Dr Manson (report 6 February 2003, p 14) and Dr Wise (report 16 March 2002, p 4). In other words just because Vigabatrin may have brought about an improvement in March 2000 does not necessarily mean that the same improvement would have been achieved had that medication been administered earlier. Professor Buchanan assumed that this would be so but was not able to be more definite. No other doctor in the case was prepared to go as far as that. My findings and the evidence (paras [240] – [252]) on the question of whether a delay of four weeks in diagnosis would have had a detrimental effect on Rhiannon’s outcome is also relevant to this question. I am not satisfied that had Vigabatrin been administered before 10 March 2000 it would have had the same beneficial effect as it did after that date.

270 Because of the factual findings which I have made in relation to breach of duty and causation, it is not necessary to determine whether as a matter of law causation has been established.

Conclusion

271 In relation to the claim against Dr Rahilly, I find that breach of duty has not been established. In the alternative, if breach of duty was established, I find that a delay of four weeks did not cause any adverse outcome for Rhiannon and consequently was not causative of any damage. Accordingly there will be judgment for Dr Rahilly.

272 In relation to the claim against the Hospital, I find that breach of duty has not been established. In the alternative, if breach of duty was established, such breach did not cause damage to Rhiannon because (i) even if Vigabatrin had been discussed, Rhiannon’s parents would have not chosen it contrary to the advice of Dr Grattan-Smith and (ii) the earlier administration of Vigabatrin would not have affected the developmental outcome of Rhiannon. Accordingly, there will be judgment in favour of the Hospital.

273 The question of costs was not argued. Liberty is granted to the parties to approach the Court on two days’ notice if it is intended to make submissions in relation to costs. If the parties do not make submissions as to costs, the order which I propose is that costs should follow the event and that the plaintiffs should pay the defendants’ costs.

274 I make the following orders:

(1) Judgment is entered in favour of the first defendant.
(2) Judgment is entered in favour of the second defendant.
(3) Costs are reserved.

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Citations

Richards v Rahilly [2005] NSWSC 352

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CITATION:	Richards & Ors v Rahilly & Anor [2005] NSWSC 352
HEARING DATE(S):	01/12/03, 02/12/03, 03/12/03, 04/12/03, 05/12/04, 08/12/03, 10/12/03, 11/12/03, 12/12/03, 15/12/03, 16/12/03, 17/12/03, 18/12/03, 16/02/04, 17/02/04, 20/02/04, 23/02/04, 24/02/04, 30/06/04, 02/09/04, 06/10/04, 08/10/04, 22/11/04, 21/03/05, 22/03/05
JUDGMENT DATE :	29 June 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	Judgment entered for defendants.

CATCHWORDS:	MEDICAL NEGLIGENCE - infant with seizures - breach of duty by paediatrician - proper history taking - delay in diagnosis - advice of paediatric neurologist - obligation of hospital to provide appropriate treatment - obligation of hospital to explain all reasonable treatment options - should particular drug have been used by hospital. CAUSATION - did delay in diagnosis cause adverse outcome - would parents have accepted medical advice - would earlier administration of drug by hospital have produced a better outcome.
CASES CITED:	Chappell v Hart (1998) 72 ALJR 1344 Eagle v Prosser [1999] NSWCA 166 KL v Farnsworth [2002] NSWSC 382 Maloney v Commissioner of Railways (NSW) (1978) 52 ALJR 292 Perre v Apand Pty Limited (1998) 198 CLR 180 Rogers v Whitaker (1992) 175 CLR 479 at 489 Rosenberg v Percival (2001) 205 CLR 434 Rufo v Hosking [2004] NSWCA 391 Wakim v McNally (2002) 121 FCR 162
PARTIES:	Rhiannon Lorraine Richards by her tutor Judith Anne Ennis - First Plaintiff Judith Anne Ennis - Second Plaintiff Mark Richards - Third Plaintiff Dr Patrick Rahilly - First Defendant Royal Alexandra Hospital for Children - Second Defendant
FILE NUMBER(S):	SC 20324/01
COUNSEL:	Jay Anderson/D Hirsch - Plaintiffs Paul Brereton SC - Defendants
SOLICITORS:	Maurice Blackburn Cashman - Plaintiffs Blake Dawson Waldron - Defendants