Schiller v Connah

[2002] NSWSC 1264

CITATION:	Schiller v Connah [2002] NSWSC 1264
FILE NUMBER(S):	SC 20523/01
HEARING DATE(S):	4 June, 5 June, 6 June & 7 June 2002
JUDGMENT DATE:	11 June 2002
PARTIES :	Yvonne Sylvia Schiller v Dr. Melanie Connah
JUDGMENT OF:	Acting Justice Taylor at 1

COUNSEL :	Mr. Williams SC Plaintiff Mr. Sheldon (Jnr Counsel) Mr. Sullivan QC Defendant Ms. Large (Jnr Counsel)
SOLICITORS:	Carneys Solicitors (P) Blake, Dawson, Waldron Solicitors (D)
CATCHWORDS:	Negligence - Medical Practitioner - delay in diagnosis - - loss of opportunity. Evidence - conflict between experts.
CASES CITED:	Rogers v Whitaker (1992) 175 CLR 479 at 487 Anderson v The Queen [1972] AC 100 Regina v Hall (1998) 36 A Crim R 368 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661-662 Samuels v Vlavel [1970] SASR at 264 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at pars 59, 87, 89 Brodie v Singleton Shire Council (2001) 75 ALJR 992 at par 355) Taylor v Regina (1978) 22 ALR 599 at 618 Davie v The Lord Provost [1953] SC 34 at 39-40 Holtman v Samson [1985] 2 QDR 472 at 474 Malec v Hutton (1990) 169 CLR at 638 Jones v Dunkel (1959) 101 CLR at 298 Prosser v Eagle [2002] NSW SC 256 Sellars v Adelaide Petroleum NL (1992-4) 179 CLR 332 at 349-350, 355, 363-364, 368 Norris v Blake No 21 (1997) 41 NSWLR at 69 (Clarke AJ) Tran v Lam (Badgery-Parker J, unreported, 20 June 1997) CES v Superclinics (Australia) Pty Limited (1995) 38 NSWLR 47 at 56-57 per Kirby J Veivers v Connolly (1994) Aust Tort Reports 81-309 Sullivan v Gordon (1999) 47 NSWLR at 319
DECISION:	Judgment for the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Acting Justice Taylor

11 June 2002

20523/01 Yvonne Sylvia Schiller

(Plaintiff)

v

Dr. Melanie Connah

(Defendant)

JUDGMENT

1 The plaintiff is an in-patient of Gosford Hospital. She is dying of cancer. An hour and a half ago I was informed she is gravely ill. Her claim is that her predicament is due to a delay in diagnosis of her tumour by a failure on the part of a general practitioner, Dr M Watson. Dr Watson (formerly Connah) is the first defendant. Proceedings against the second defendant, also a medical practitioner, have been discontinued. For convenience, Dr Watson is referred to in these reasons as "the defendant".

2 The plaintiff noticed a lump, the size of a pea, in her right shoulder in April 1998. She consulted Dr Watson on 5 May of 1998 at the doctor's surgery, the South Burnett Medical Centre in Kingaroy, Queensland. It is not in dispute that Dr Watson owed Ms Schiller a duty to exercise reasonable care in and about her consultation, diagnosis and treatment. The plaintiff alleges that, as a result of Dr Watson's negligence, she lost the opportunity for effective treatment of the lump and ultimately developed an inoperable cancer. The tumour, a leiomyosarcoma (the sarcoma), is very rare, occurring, statistically, in about one person per million per year. Principally, I have had to decide if Dr Watson was negligent and, if so, whether the plaintiff's condition was caused by such negligence.

3 I have concluded that the plaintiff cannot succeed in her claim. The defendant is entitled to a verdict. Medical science could perhaps have detected, and possibly treated, this rare cancer between the first consultation and May 1999, by which time her cancer was incurable. That technology is not matched by medical profession practice in its detection and management of such cancers. The particular sarcoma is rare in occurrence and deceptively difficult to distinguish from benign lumps on clinical examination. By the time signs indicating malignancy appeared, which a prudent general practitioner would act upon, her condition was incurable.

4 I have also concluded that the defendant was negligent in not recording the size of the lump on the first examination, but there is no persuasive evidence that this failure was in any way causative of the plaintiff's injury, or resulted in a loss of chance is claimed.

5 In explaining these conclusions I will first of all look at the critical period between May 1998 and May 1999.

The Critical Period Between May 1998 and May 1999
What happened at the consultation of 5 May 1998: no change in the shoulder lump, but in May 1999 two lumps appear on the scalp.

6 Dr Watson has no independent recollection of the consultation. She made contemporaneous notes. What happened at the consultation is understood from these notes and the plaintiff's recollections. The starting point is Ms Schiller's recollections.

7 Nearly all of Ms Schiller's evidence in chief was introduced through a statement she made on 24 February 2002. The plaintiff gave oral evidence from her wheelchair in a meeting room at Gosford Hospital on 4 June 2002. She is presently taking morphine for pain control. When Ms Schiller gave her evidence she was responsive to questions and spoke in a coherent way. At one point she needed to take a break for medication. She impressed very much as a person doing her best to tell the truth, and I accept her as such.

8 The plaintiff first noticed the lump when she went to bed one night, held her arm up and felt the lump in her shoulder. She thought that women were not supposed to have lumps, and she had never had a lump in that place before. She made an appointment the next day to see the defendant in a week's time.

9 On 5 May 1998 the plaintiff attended the defendant's surgery. She said to her words to the effect, "I have a lump on my right shoulder". Dr Watson felt the lump, asked her to move her arm around, felt the lump again and said to her words to the effect, "There is nothing to worry about, it is scarring from a torn ligament." In her statement she said the consultation ended without Dr Watson asking her anything about previous trauma or skin conditions. This contrasts with her oral evidence, when the plaintiff said she told Dr Watson, in response to a question from the doctor, that she had not injured herself. She said in evidence that the doctor did not say that she should keep an eye on the lump or check its progress. She did not ask her to come back and see her at any stage about the lump.

10 The plaintiff was asked whether she would have checked the progress of the lump and returned if she had been asked to do so and she said "Definitely". She said the consultation took no longer than ten minutes. In her statement the plaintiff said that the lump did not cause her any pain. She said she had no previous injury or trauma, and she said she was comfortable with Dr Watson's advice that there was nothing wrong with the lump. This is her reason for making no further complaints to her.

11 When cross-examined the plaintiff said she had a good memory of events in May 1998. She thought she had seen Dr Connah a few times from May of 1997. It was suggested she only saw her the one time before May of 1998. This is not the plaintiff's recollection.

12 The plaintiff agreed that in May 1997 she was concerned about giving up smoking and discussed Nicorette patches with Dr Connah. She also remembered that in May 1998 she had a "few things done in the one day", and that generally she did not have much need for doctors. She agreed that she possibly discussed other matters with Dr Connah at the consultation in May of 1998, but her main concern was the lump. The plaintiff was asked about the size of the lump, because she described it in her statement as "pea" sized. It was suggested to her that the size of a pea could vary. In response, she held up her thumb and forefinger and demonstrated the diameter of the lump by passing her index finger through the hole. She said it was only quite small.

The plaintiff denied that Dr Connah asked her to keep an eye on the lump and to let her or her doctor know if it got worse. In response to that the plaintiff said:
A. No. She was my doctor. And she didn't ask me to keep an eye on it at all, she said that it would be okay, and there was nothing to worry about, that's exactly what she told me there was nothing to worry about.

13 I now turn to the doctor's version of events. Her notes are written in a shorthand fashion. The doctor explained them in evidence. The notes are contained within a manilla folder "RACGP Health Record" for Yvonne Schiller. They comprise a number of individual documents raised at various times relating to the plaintiff's health care. The record is called a chart. It is convenient now to record the doctor's note-taking system and her interpretation of the notes for all the consultations.

14 The chart contains an A5 printed form recording the consultation of 27 May 1997. It is in the standard form in use in the defendant's practice at Kingaroy in 1997. The doctor's receptionist on arrival of the patient entered a number of details on the form. These included the patient's name, date of birth, the date of the consultation, and a health care card or social security number and telephone number. The actual address of the patient and, in this case, her mail service address was shown.

15 Beside the abbreviation "Dr" is recorded "KMC". This is an indication that the plaintiff nominated to the receptionist the Kingaroy Medical Centre as the patient's usual medical practitioner. The entry after the abbreviation "Wt" was inserted by the doctor and shown as 69.4 kilograms. The doctor completed the box “Allergies” and the box “Medications” during the consultation. Dr Watson recorded the plaintiff's past surgical history.

16 The document then records, in sequence, the course of the consultation on 27 May 1997. The first line reads "LNMP13-5/97" which indicates that the plaintiff's last menstrual period was on 13 May that year. The next entry says "BP 110/70" and is the plaintiff's blood pressure measurement recorded by the doctor. The next entry says "mod AE" means moderate air entry. This records that the plaintiff's chest air entry was normal. This was noted because the plaintiff was a cigarette smoker. Her chest was noted as "clear".

17 The following entry "ABDO soft" means that after listening to her chest and palpating her abdomen, prior to performing a Pap smear, it was soft, not tender. The entry "A/V" stands for anteverted uterus. "Pap" with a tick sign means the doctor performed a Pap smear. "Adenxae" with a "nil" and then "zero" means there was no abnormality palpated in the adnexa. On the next line the doctor wrote "script" with a tick which means she wrote the patient a repeat script for the oral contraceptive pill. The next line has the words "discussed Nicorette patches" and is self-explanatory. The date 5 May 1998 was stamped on the record. The practice was for the sheet to be date-stamped by the receptionist when the patient made the appointment, a week before in this case. If the patient did not show up that fact was recorded beside the date.

18 The first entry for the critical consultation "66.4 kilograms" recorded the plaintiff's weight. Beside that were the words "discussed Nicorette patches again". Then there is an arrow sign and "scripts", which meant that the doctor would provide her with a script for Nicorette patches.

19 The next entry was "ear syringe clear of wax", followed by "TM" with two ticks. "TM" stands for tympanic membranes. The tick signified that the doctor checked the tympanic membranes and noted them as clear after syringing the plaintiff's ears. Then the next line says "lump in muscle edge right pectoralis major." The doctor then wrote "? = scar/haematoma", an arrow "observe", and then her initials. The defendant interpreted this as recording that the lump was in the lower right hand shoulder near the armpit. She said her notes indicated that the plaintiff would have presented with a lump. She would have examined it and found it to have characteristics of either a scar or a haematoma. In the course of examination she would see if it had, and note, any other concerning features such as ulceration, redness, the consistency of the lump, if it was hard or attached to any structures around it, or impeding any movement of the muscle around it. She said these were the normal things she would examine.

20 In the absence of any mention in her notes of those normal things that she would have examined, it indicated to her that they were normal: ie she found no concerning features. Dr Watson accepted that if the patient presented to her with a lump about ten millimetres in diameter, which was only recently discovered by the patient, and that there was no history of trauma, that that should be investigated either immediately or on review consultation within a month or so by ultrasound in the first instance. It follows that if this had been the presentation by the patient, Dr Watson's evidence is she would have taken the matter further.

21 The defendant accepts she would have said to the plaintiff to "keep an eye on the lump and seek medical attention if there is any further concern", or something along those lines. She doubted whether she would have ever said there is nothing to worry about. She would say "This is what I think it is."

Mr Williams asked her questions:
Dr Watson, I would like to read you a question that Mr Sullivan asked the plaintiff yesterday and the answer that was given - page 7 your Honour. He said:
'Q. When you spoke to Dr Connah about it in May 1998 she asked you, didn't she, to keep an eye on the lump and to let her know or let your doctor know if it gets worse, didn't she?
A. No, she was my doctor and she didn't ask me to keep an eye on it at all. She said that it would be okay and there was nothing to worry about. That's exactly what she told me. There was nothing to worry about.'

I suggest to you that that answer given by the plaintiff is what you said to her?
A. No, that's not correct.

Q. You're not in a position to deny it because you don't have any recollection of the event?
A. I have no recollection.

Q. But the likelihood is that you said that isn't it looking at the notes?
A. No."
Conclusions On The Consultation

22 There is conflict between the plaintiff's recollections as to what happened at the consultation, and the defendant's reconstruction of events from her notes. That reconstruction is dependent upon the accuracy of the notes. Importantly, they were contemporaneous. They follow the sequence of the examination. Apart from minor administrative slips, the notes in my view present a clear picture of the various attendances upon the plaintiff by the defendant. Interpretation of the notes was uncontroversial and provided little difficulty to other medical practitioners. Only, for example, the word "haematoma" led to some ambiguity.

23 It is inherently unlikely that the doctor did not ask the plaintiff whether there had been any previous trauma. I think the plaintiff is mistaken in her statement. The plaintiff is also mistaken about the number of consultations she had with Dr Watson before 5 May. I do not think much turns on this. There are some things we retain a recollection of for a long time, and other matters are not of particular interest and we do not remember events in their sequence. The plaintiff's previous visits to the doctor are in this latter category.

24 There was some confusion as to whether the plaintiff was an ongoing patient of the defendant. It seems to me that she decided she was to be. However, in accordance with the policy of the practice, it was not until the third visit that a chart was raised. Up to that time she was regarded as an "itinerant" patient. This was a sensible arrangement as a copy of the consultation notes was forwarded to the doctor nominated in the notes. This uncertainty does not affect the negligence issue in this case.

25 There are some matters of concern arising out of the consultation. The first is an ambiguity that appears inherent in the medical practice. At the end of the consultation the doctor, I infer, was confident that the patient would report any changes or concerns. The patient, on the other hand, was confident she had nothing to worry about. Two questions arise: why should there be a conflict on this one issue between two witnesses doing their best to tell the truth? What did the doctor say?

26 It is inherently unlikely that the defendant did not explain to the patient that she should keep an eye on the lump. The fact the word "observe" appears suggests that she did so. Nothing in the doctor's evidence suggests that she would not have followed her usual practice. I accept her evidence.

27 Why should there be a conflict? Both Dr Walsh and Dr Boyages gave persuasive evidence of the difficulties in prematurely creating a concern in a patient as to possible outcomes. In their view the general practitioner responded appropriately, particularly in this case where the patient was sufficiently concerned to initiate contact with the doctor concerning the lump.

28 An obvious difficulty is that an ambiguity can, as a matter of common sense and experience, arise in a patient. No treatment or further investigation was required. This must have heartened the plaintiff, it seems to me sufficiently so, for her to put it aside. This is consistent with the delay referred to below in contacting a doctor between March and October of 2000.

29 I have concluded that the defendant most likely told the plaintiff that she should keep an eye on the lump. This is consistent with both the doctor telling her to keep an eye on it, and the fact she would most likely on her own initiative return if it had.

30 I am not satisfied she took no further interest in the investigation of the lump until it began to grow because of a false sense of security induced in her by the defendant.

31 A further matter arising out of the consultation was the defendant's failure to record her observations. In my view she should have done so. Dr Watson agreed that she should have recorded something about the size and consistency of the lump and the other matters referred to. She agreed it was a very important matter so that she could have compared at least the size and consistency on any subsequent consultation.

32 Dr Boyages, Dr Walsh and Dr Vaughan all seem to indicate that the observations should have been recorded.

33 In my view this amounted to negligence on the part of the doctor and is later explained in these reasons. I have given careful consideration to the effect of this breach but have concluded that it has no favourable bearing to the plaintiff on the outcome of the case.

34 I should also note that nothing was made of the fact that the question of the lump was not raised on subsequent visits. Leaving aside the issue of causation, none of the experts made anything of that fact. It would be the usual practice of lawyers to look at the notes from a previous conference when a client revisits. Businesses from the smallest to the largest routinely look to the minutes of a previous meeting before discussing the agenda of the day. I had a sense that the plaintiff, when she spoke of "my doctor" would have an expectation that the doctor had a professional concern for her medical management that extended beyond the boundary of a particular visit. After all, the doctor had a folder of notes. Continuity of care is good reason for settling on the one doctor. If the plaintiff held such a belief, it was illusory.

No Change In The Shoulder Lump - Lumps On The Plaintiff’s Head Appear

35 The lump did not change in size over the next year, but two lumps appeared on Ms Schiller’s head. Until she noticed those there was no change whatsoever in the lump on her shoulder as to size, shape, feeling or pain.

36 She had consulted further with Dr Watson, but that was with respect to her pregnancy. On 7 April 1999 she gave birth to her daughter Natalie. It was within six weeks of the child's birth the plaintiff noticed two lumps on her head, one on top and one on the right side.

37 On 28 May 1999 the plaintiff consulted Dr Van Der Merwe at Wondai Medical Centre with respect to her daughter's immunisation needs, and at the same time she complained about the lumps on her head. She said to Dr Van Der Merwe words to the effect, "Can you tell me what these lumps are on my head?" The doctor took a look at the lumps on her head and said to her words to the effect, "Lots of people get lumps and there is nothing to worry about, they're all right."

Progress Of The Plaintiff’s Illness From March 2000 To The Present

38 On 17 March 2000 the plaintiff separated from her husband and moved back to her parents' house at San Remo for a period of about three months. It was during that time that she noticed that the lump in her shoulder had grown larger. Her evidence was that during that period she noticed the lump grow. She thought that it probably did not start to grow until July or August, then she said it "started to really take off." She had a little bit of difficulty identifying the precise time when this occurred because she had said in the statement that she knows the lump grew larger when she was living with her parents at San Remo, and by July she had left. She said in evidence:

Q. In your statement you say it was when you moved back to San Remo to your parents' place that you noticed the lump grow larger?
A. Yeah, well, yeah, it was, yeah, would have started slowly back then and all of a sudden it's just sort of gone whoosh.

39 She thought that this happened in July or August.

40 The plaintiff made an appointment to see Dr Tsouroutis on 30 October 2000. She delayed seeing him somewhat because she did not think there was anything to be concerned about. She showed that doctor the lump on her shoulder, and he said words to the effect of:

Lots of people get lots of different lumps for lots of different reasons; they are probably sun spots, we will definitely get the shoulder tested.

41 She was referred for an X-ray and an ultrasound at the Toukley Radiology Centre. No abnormalities were detected in the X-ray and ultrasound, apart from the fact that there were two lumps in her muscle.

42 On 2 November 2000 the plaintiff consulted Dr Tsouroutis and underwent a fine-needle aspiration of the lump. On 6 November 2000 she again consulted Dr Tsouroutis who informed her that the biopsy failed to detect any abnormalities. She was then referred to Dr Burke, who referred her in turn to Dr Stalley at Royal Prince Alfred Hospital Medical Centre.

43 The plaintiff saw Dr Stalley on 8 December 2000. On 8 January 2001 she underwent a chest X-ray. On 17 January 2001 she was admitted to Royal Prince Alfred Hospital where Dr Stalley removed the lump in her right shoulder. On 26 January Dr Stalley telephoned her and informed her that the lump was highly cancerous - a rare form of cancer - and that she should come down to Sydney the next day for more tests.

44 On 27 January 2001 the plaintiff attended Dr Stalley, who referred her for scans all over her body. On 2 February she consulted Professor Tattersall at Royal Prince Alfred Medical Centre. She informed her that she was "full of cancer and that surgery was out of the question." On 5 and 7 February the plaintiff saw Dr Tsouroutis again. She was told her scalp lesions were biopsied and showed leiomyosarcoma. The plaintiff consulted Professor Tattersall on 14 February and had her first session of chemotherapy. She had her second session on 7 March and further sessions on 2 and 3 April. She continued under the care of Professor Tattersall and Dr Tsouroutis. The plaintiff is now in the last stages of her illness and receiving only palliative care.

The Expert Evidence
The Joint Experts' Conference, review of the evidence of each of the experts, principles applied in resolving the conflict between: conclusion that the evidence of Dr Boyages and Dr Walsh ought to be preferred: findings.

45 A Joint Experts' Conference was convened pursuant to Pt 36 of the Supreme Court Rules. Each of the participants, Dr Vaughan, Associate Professor Boyages and Dr Walsh gave evidence. The report was, by consent, tendered in evidence. As much of the expert evidence centred on the report, and because of its own importance the questions and answers for each expert are set out at the outset of my consideration of each individual's evidence.

46 Dr S Vaughan, a consultant physician, haematologist and medical oncologist, was qualified by the plaintiff to give evidence. He did so by video link from Paris. This caused no difficulties with his evidence, except that he did not have available to him some of the documentation he commented on. Counsel satisfactorily dealt with that problem.

1. If the plaintiff had attended on Dr Connah for re-consultation within one to two months of 5 May 1998 (say July 1998) and in relation to the further consultations in October 1998 and November 1998, for each such consultation:

(a) On the balance of probabilities, would the lesion have been observed to be static in size?

Probably yes (but would not place much reliance on the change in size).

(b) What should Dr Connah reasonably have done?

New lump - no prior trauma, an ultrasound should have been done.

(c) Should Dr Connah have continued with the mutual observation?

Yes. (Assuming mutual observation means repeat consultation and self-report by patient of any specified changes).

(d) Should Dr Connah have referred the plaintiff to a specialist?

No. The patient should have been referred for an ultrasound and specialist referral depending on ultrasound result, regardless of change in size.

2. If the plaintiff had been referred to a specialist and had attended such a specialist in September 1998, November 1998, or February 1999, in relation to each such special consultation, please indicate:

(a) What is/are the likely mode(s) of investigation that would have been undertaken by the specialist? (eg palpation, measurement, fine needle biopsy/aspirate, ultrasound, X-ray, MRI, biopsy, excision biopsy)

Palpation, measurement, ultrasound, MRI, excision biopsy in that order.

(b) What would have been the likely findings, and when would they have been available?

It is likely that an ultrasound, or more likely MRI, would have had features suggestive of malignancy which would have required an excision biopsy.

If an excision biopsy was done at any of the nominated dates, a diagnosis of leiomyosarcoma would have been made.

(c) On the balance of probabilities would these findings have triggered removal of the lesion? If so, when?

If any of the suggested tests listed above were suspicious of malignancy, the lesion would have been removed within a few weeks.

(d) If the answer to 2(c) is yes, on the balance of probabilities would removal of the lesion at this time have changed the plaintiff's outcome? If yes, please specify any difference in prognosis.

This is a tumour that, because of its rarity, is not as well understood as more common cancers such as breast, lung or colon cancer making predictions of prognosis more difficult.

As a general proposition, delay in the diagnosis of cancer worsens the prognosis. On that basis, the prognosis has been reduced by the diagnostic delay. This is difficult to quantify given the rarity of the tumour, but it is likely to have been moderately significant. There is no reliable method of determining whether an individual's cancer prognosis is improved by early diagnosis. Some prognoses will be improved by early diagnosis, and some not. Therefore, practitioners need to act on the assumption that early diagnosis makes a difference.

47 In respect of the plaintiff's consultation with Dr Watson in May of 1998, Dr Vaughan is of the following opinion. Dr Watson made the diagnosis of scar/haematoma and instituted a policy of observation, although there is no statement from the patient, or notes in the clinical record, to state that there was a history of prior injury which is necessary to make the diagnosis of scar/haematoma.

48 In his opinion it was unreasonable for Dr Watson to make a diagnosis of scar/haematoma in the absence of the history of a trauma. If a policy of observation was instituted, it should have been observed strictly with clinical review within one or two months.

49 In relation to the consultation of May 1999 with Dr Van Der Merwe, he noted that the development of lumps on the scalp mentioned in the consultation by the plaintiff, and subsequently confirmed by biopsy, represented the development of metastatic disease which meant that the disease was no longer curable at that time. In his opinion there was a diagnostic delay between May of 1998, when the plaintiff presented to Dr Watson, and the review of Dr Van Der Merwe in May of 1999 at which time the plaintiff had an incurable disease.

50 As a matter of general principle he said that cancer arises in a primary site and, after a time, dependent process spreads to other parts of the body. In certain cancers, like breast cancer and cervical cancer, there are large studies available that establish the importance of early diagnosis based on the effectiveness of screening programmes. Such information is not available for rare tumours like leiomyosarcoma so arguments about the effects of early diagnosis on eventual outcome are based on general rather than specific principles related to tumour development and spread.

51 In the present case, in his opinion, there was an inappropriate diagnostic delay of twelve months which increased the possibility that the tumour would spread. It is difficult to quantify the magnitude of this effect based on the available information.

52 Dr Vaughan said in evidence that in the absence of any history of trauma a new lump developed under the skin that, on the first consultation, if the doctor was confident about the history given, an ultrasound should be ordered or alternatively, the patient brought back a month later for a second consultation and then an ultrasound ordered.

53 He said he would anticipate that the ultrasound might show a solid lump. This would give the doctor a clear idea in precisely which tissue clump the lump was, whether it was the muscle, the tendons or fat. Based on that the doctor should make a decision about what was to be done next. The view expressed in his evidence applied, in his opinion, to all doctors whether they be physician, surgeon, general practitioner or oncologist. All doctors needed to have a strategy as to how to deal with lumps. He very much emphasised that, in his view, a new lump under the skin, without an antecedent trauma, should have an ultrasound. And if it turned out to be some form of cancer, a needle biopsy can create problems with subsequent cancer treatment. In his view if a doctor sees a lump and the ultrasound suggests it is not a cyst or other benign abnormality, then the patient should be referred to a surgeon. He expressed a similar opinion in this way, that a "single firm, hard lump of recent origin with no history of trauma, you would have to look further into that."

54 When cross-examined Dr Vaughan disagreed that a leiomyosarcoma occurred about once in one million people in the population per annum. In his view, based on his experience, the occurrence of such tumour is more frequent. He did say the particular sarcoma is not common and unlikely. He agreed that it is very rare to see a leiomyosarcoma in the region of the right pectoral muscle. Dr Vaughan said he had seen metastatic disease in the right pectoral muscle, but not as a primary tumour. He had seen one in the deltoid muscle.

55 He was questioned about a letter from Dr Stalley to Professor Tattersall dated 29 January 2001 in which Dr Stalley had stated he had performed an excisional biopsy and was surprised that the tumour turned out to be the leiomyosarcoma, describing it as "bizarre". Dr Vaughan did not agree that it was bizarre. He thought the progress of the tumour fitted in with the present understanding of genetic tumours. In his view a needle biopsy was "pretty close to useless in soft tissue tumours". The only biopsy to be relied on is a positive one. He said that by May 1999 when the plaintiff saw Dr Van Der Merwe with the lumps on her head her cancer was no longer curable and that the lumps were clear evidence of metastatic disease. He was asked to do the best he could to assess how long the metastatic disease had been present in May 1999. He said that a period of three months would be a bit short and that three years is a bit long. He thought it could have been there for maybe six months. He agreed it had possibly been there from twelve to eighteen months. In his opinion he felt delay in diagnosis had made a difference to the plaintiff. He thought it was quite possible that if the lump had been removed initially it would have been removed before the cancer cells spread to the skull so, in his opinion, the delay in diagnosis had led to that. If it were three months, he would not have had the view that the diagnostic delay made a difference. He based his opinion on his understanding of cancer biology and how cancer behaves. Dr Vaughan was of the opinion that the delay in diagnosis of three months would not make a difference, but anything over six to twelve months would make a difference as to the prognosis of the plaintiff. His view was that an early diagnosis makes a difference and he said:

If people are going around saying that early diagnosis does not make a difference, then we might as well all give up.

We have to assume that early diagnosis makes a difference at least in some people and act accordingly.

56 He was asked the express the probabilities of the metastasis being present and he expressed it in a number of ways. He said:

It was six to nine months, probably there already.

57 He expressed his view about rare cancers in this way:

Based on my understanding of cancer biology and how cancer cells spread, if that is so how are people with these unfortunate rare tumours treated - do we give up on them? We have to make judgments on them and, without the information, part of the daily practice is dealing with rare cancers and making general observations from your broad knowledge of cancer about their behaviour in the context of looking after these persons.

58 He insisted he would have done an ultrasound at the first visit. He said the issue is not the size, not the change, but the hardness, and that is the "thing that enables you to detect cancers." In his opinion the cancer was not there twelve months previously. He expressed this opinion on the basis of cancer biology and his clinical experience. He said:

The point I am making is if it was only three months it was probably there already. If it was six to nine months probably there already. If it was nine to twelve months, probably was not, ten years probably not but with more certainty. There is just a range of intervals with certain changes in relation to the interval but, ultimately, because of the nature of the cancer, even if it was twenty years you could not be certain.

59 In his view in May 1998 an observation programme would have been appropriate as the first level of treatment. He was asked:

If the lady came back in a month's time with absolutely no change to the lump and it was not painful and it had not changed in size, it had not changed in any shape or form whatsoever, what should then have been done?
A. I would have done an ultrasound at the first visit. The issue is not the size, the issue is not the change, the issue is the hardness, that's the thing that enables you to detect cancers. The common sort of lump is soft and mushy but if it was hard, and hardness is a strong feature suggestive of cancer - it is not the size, it is not the change, it is the hardness.

60 He again described the effects of delay in this way:

I think a three month delay does not make much difference at all. I think a twelve month delay certainly makes a difference. Nine months probably, six months you could argue. That would be my general view.

61 He did not agree that there is no reliable method of determining whether an individual's cancer prognosis is improved by early diagnosis. By "reliable" he said he meant reliable to the standard of 100 per cent.

62 Dr Vaughan said that in his report and in the joint experts' report he did not regard "more likely" to be equivalent to "on the balance of probabilities". He was asked:

But you regarded it as a mere possibility?
A. You say a mere possibility. If you would like to put figures on it, 12 months maybe 55-60 per cent, nine months it might be 45 per cent and six months 20 per cent and three months probably nothing.

63 Dr Vaughan is familiar with the report of Associate Professor Boyages. He disagrees with much of it. He agreed that one of the advantages of the Swedish work is high quality in that it is population-based. He was asked:

Do you agree that that paper set forth matters set forth in the next sentence 'soft tissue leiomyosarcoma is noted at'?
A. Yes, they are, yes, soft tissue like we all think about is uterus and stomach and soft tissues. This is where we get confused. With leiomyosarcoma the commonest sites are the stomach and the next commonest is the uterus - there are common or uncommon tumours. This paper seems to be restricted to not those internal organs. The title is misleading.

64 He said the figure of 0.13 to 10 to the 5th or 1.3 persons per one million in the Swedish paper was somewhat confusing. In his view the diagnosis of leiomyosarcoma is rare, but not extreme. In his view the Swedish study is not powerful enough to reach the conclusion that the prognosis is not influenced by tumour size. He also said a case report from Atlanta, Georgia - Huon Low - reporting the unusual progressive behaviour was not indicated by the tumour size and was under-powered. He said there is no logic in watching a tumour grow and increase the chances of it spreading.

If you think it is something to worry about you biopsy. I would have brought the patient back less than one month and, personally, I would have done an ultrasound on the first consultation. It depends a bit on the relationship.

65 He said the possibility that the leiomyosarcoma arose from another point in the body, and the lump on the shoulder was a metastasis, was a remote possibility "and if you want me to put a figure on it, less than one per cent." He was asked:

Q. Would you agree that removal of the tumour in June 1998, more likely than not, would not have changed the biological aggressive nature of the tumour?
A. There are two double negatives in that question. I think it would have changed the nature of the treatment and it would have increased the likelihood of cure more likely than not.

66 Dr Norman Walsh gave evidence. He is a fellow of the Royal Australian College of General Practitioners and has a Diploma in Obstetrics from the Royal Australian College of Obstetricians and Gynaecologists. He has been a general practitioner since 1982. Set out hereunder are his responses to the questions posed by the Joint Conference.

1.If the plaintiff had attended on Dr Connah for re-consultation within one to two months of 5 May 1998 (say July 1998) and in relation to the further consultations in October 1998 and November 1998, for each such consultation:

(a) On the balance of probabilities, would the lesion have been observed to be static in size?

Yes.

(b) What should Dr Connah reasonably have done?

If lump sufficiently small, observations alone would have been appropriate.

(c) Should Dr Connah have continued with the mutual observation?

If lump sufficiently small, patient observations alone would have been appropriate with review if it changed.

(d) Should Dr Connah have referred the plaintiff to a specialist?

No, if the lesion had not changed in size.

2.If the plaintiff had been referred to a specialist and had attended such a specialist in September 1998, November 1998, or February 1999, in relation to each such special consultation, please indicate:

(a) What is/are the likely mode(s) of investigation that would have been undertaken by the specialist? (eg palpation, measurement, fine needle biopsy/aspirate, ultrasound, X-ray,
MRI, biopsy, excision biopsy)

The patient is likely to have been referred to a general surgeon rather than an oncologist. A small lesion with non-suspicious ultrasound may have been observed by a surgeon without further investigations. If suspicious features were present most of the listed investigations would have been performed.

(b) What would have been the likely findings, and when would they have been available?

I am not a radiologist. However, I have seen delay and failure to diagnose many malignant lesions when ultrasound has been the initial investigation. It is likely that ultrasound would have been the initial investigation and if the lesion was 'pea sized' it is possible that an ultrasound would not have had features suggestive of malignancy.

If an excision biopsy was done at any of the nominated dates, a diagnosis of leiomyosarcoma would have been made.

(c) On the balance of probabilities, would these findings have triggered removal of the lesion? If so, when?

If any of the suggested tests listed above were suspicious of malignancy, the lesion would have been removed within a few weeks.

(d) If the answer to 2(c) is yes, on the balance of probabilities, would removal of the lesion at this time have changed the plaintiff's outcome? If yes, please specify any difference in prognosis.

This is a tumour that, because of its rarity, is not as well understood as more common cancers such as breast, lung or colon cancer making predictions of prognosis more difficult.
This tumour has a very poor prognosis due to its rapid growth and tendency to metastasise early. If the tumour had metastasised already when Dr Connah initially reviewed the patient, the prognosis was already extremely poor. The initial ultrasound in October 2000 found two tumours and the patient states that she noted what was subsequently proven to be scalp metastases within a year of first presentation. For these reasons, and bearing in mind the general principles outlined by Dr Vaughan above, it is more likely than not that removal of the lesion in either September 1998, November 1998, or in February 1999 would not have altered the patient's outcome as metastatic disease was probably already present in 1998 in my opinion.

67 Dr Walsh prepared two reports dated 29 January 2002 and 20 February 2002. On page 3 of his initial report he referred in the second paragraph to the fact that the only estimate of the initial size of the lump was recorded in the medical record of the second admission to the Royal Prince Alfred Hospital, and the admitting residential officer recorded on 2 April 2001:

Ms Schiller described the development of her condition under the paragraph headed 'History presenting problem.' She described a lump on the right shoulder, pea arrow golf ball over three years. Nil other symptoms.

68 The lump by the plaintiff's description would be between half a centimetre and a centimetre. In his opinion in a younger patient with a small lump the likelihood of a malignant tumour is exceedingly rare and one would require growth to justify histological investigation, which would normally be by fine needle aspiration biopsy. He was asked:

What are the reasons for your view that it was appropriate in the first instance for Dr Connah on the facts as you have been asked to assume them to recommend observation rather than investigation?
A. Firstly, the lesion was less than ten millimetres according to the evidence we have heard. Secondly, the lesion had not been growing. Thirdly, a lump arising from muscle is very rare, to have a malignant tumour is very rare, whereas a lump arising in a breast not infrequently is proved to be a malignant tumour."

69 When asked to assume that the plaintiff gave no history of a recent bump or knock, he said his opinion did not change because:

Soft tissue injuries are often unrecognised and in the healing process may give rise to abnormalities of muscle scarring, the process of myositic that Dr Stalley mentioned in his report, given the remoteness of a malignant tumour right up to the time the biopsy result was received by Dr Stalley, the obvious likelihood was that this was a trauma-related lump that had occurred within the muscle. Dr Stalley operated in a fashion that indicated he thought a malignant tumour was most unlikely.

70 Central to his opinion was the fact that the lump was in a tissue where the probability of malignancy is remote. The lump had not been observed to grow. The lump was small. They are the main reasons. He agreed, with some qualification, that generally early diagnosis provided a better chance of successful treatment of a tumour. He would recommend measuring and recording the measurement of the lump to provide a better indication than "pea sized" for monitoring growth. He disagreed, on the history of this case, that the lump had grown from a size that was undiscernible, ie only a few millimetres, to something in the order of eight or ten millimetres over a matter of weeks or months.

71 He said the general principles doctors observe when looking at cancer growth are of a steady exponential growth. It is not an invariable rule, but it would apply in the great majority of cases. Dr Walsh would not agree that the lump had only recently become discoverable. He said it was a lesion that was only recently discovered when the plaintiff went to the doctor.

72 Professor John Boyages gave evidence. In 1986 he was made a Fellow of the Royal Australasian College of Radiologists. In 1994 he was awarded a Doctorate of Philosophy from Sydney University in Medicine in respect of a paper entitled "Predictors of Breast Cancer Recurrence Following Breast-Conserving Therapy, Implications for Treatment Strategies." His area of specialty is as a radiation oncologist, which essentially treats cancer with radiation. He specialises in breast cancer. He has been practising as a specialist in the field of radiological oncology for thirteen years.

73 Dr Boyages responded to the Joint Experts Conference questions in the following manner:

1.If the plaintiff had attended on Dr Connah for re-consultation within one to two months of 5 May 1998 (say July 1998) and in relation to the further consultations in October 1998 and November 1998, for each such consultation:

(a) On the balance of probabilities, would the lesion have been observed to be static in size?

Yes.

(b) What should Dr Connah reasonably have done?

Assuming the lesion was 'pea size' and had not changed significantly in size, observations alone would have been appropriate.

(c) Should Dr Connah have continued with the mutual observation?

Yes. (This depends on the level of suspicion and, given the location of the lesion, and the fact that the patient found it, it would not be unreasonable to ask the patient to return if it changed.)

(d) Should Dr Connah have referred the plaintiff to a specialist?

No, if the lesion had not changed in size.

2.If the plaintiff had been referred to a specialist and had attended such a specialist in September 1998, November 1998, or February 1999, in relation to each such special consultation, please indicate:

(a) What is/are the likely mode(s) of investigation that would have been undertaken by the specialist? (eg palpation, measurement, fine needle biopsy/aspirate, ultrasound, X-ray, MRI, biopsy, excision biopsy)

Palpation, measurement, ultrasound, fine needle biopsy would be performed in the first instance and if these were negative and the patient was happy with an observation policy, I would continue an observation policy. I would proceed to an excision biopsy if there were any suspicious features or based on the patient's anxiety about the lump.

(b) What would have been the likely findings and when would they have been available?

In the early stages of this disease, if the disease was indeed a primary rather than a metastatic lesion in the shoulder region, and if the lesion was 'pea size' it is likely that an ultrasound would not have had features suggestive of malignancy and the fine-needle biopsy would not have been helpful.
If an excision biopsy was done at any of the nominated dates, a diagnosis of leiomyosarcoma would have been made.

(c) On the balance of probabilities, would these findings have triggered removal of the lesion? If so, when?

If any of the suggested tests listed above were suspicious of malignancy, the lesion would have been removed within a few weeks.

(d) If the answer to 2(c) is yes, on the balance of probabilities, would removal of the lesion at this time have changed the plaintiff's outcome? If yes, please specify any difference in prognosis.

This is a tumour that, because of its rarity, is not as well understood as more common cancers such as breast, lung or colon cancer making predictions of prognosis more difficult.
My review of the case and the literature indicates that small leiomyosarcomas which are of high grade can metastasise very quickly, even before surgery, and tumour size usually has no significant bearing on prognosis. In my opinion, early removal of the lesion is unlikely to have changed the biologically aggressive behaviour of this tumour. Given the presence of two lesions, one in the deltoid and one in the pectoral muscle, although likely to be a primary with a satellite lesion, the possibility of widespread metastatic disease at diagnosis cannot be totally excluded making curative treatment even in May 1998 impossible.

74 Dr Boyages prepared two reports in this matter, one an undated ten page report, and the second report being a one page report of March 2002. He said sarcoma is rare. Leiomyosarcomas are a less common sub-type within that group. They can occur in all parts of the body. The rarest sub-type can occur in the trunk, as in this case.

75 By the expression "high grade tumour" in his report he means how "angry" a tumour looks under the microscope. The angrier a tumour looks, the more likely that it can spread.

76 He said tumours do not change grade over the course of their development. He said there is no evidence that sarcomas change from a Grade 1 to a Grade 3. Most of the understanding in tumour biology is that they tend to go along a particular low grade type of pre-cancer into a low grade of final cancer, and the same with the high grade pathway.

77 A diagnosis was made in this case in late 2000, early 2001, that this particular tumour was a high grade leiomyosarcoma and this means, in his opinion, that when it first became malignant it was also a high grade tumour. That would mean in the early stages it was one which had a propensity for spreading. He said most patients find lumps by accident. He said:

Most normal human beings have the odd lump or bump somewhere. That is generally found, and often usually most people have never noticed it before. It is usually more the fact that they had not noticed it, than they notice it.

78 He said it is not conceivable, in his opinion, to go from nothing to pea size in a week, and then stop for two years, or whatever the time was.

If it was growing at that high growth rate it would have been say golf ball size within a couple of months, and then a melon by the end of the year. So I think it was just found at that time as a small lump.

In his opinion it probably would have developed several months beforehand.

79 He said he would personally rather have a five centimetre grade 1 tumour than a one centimetre grade 3 tumour. In his opinion it is more likely than not that if the tumour had been removed in May or June 1998 the metastatic changes would have been present already. The annual incidence of leiomyosarcoma is 1.3 people per million.

80 He referred to the Gustafsen (Swedish) article (page 118) that tumour size was not a significant influential factor in prognosis. He was asked:

Q. Could I take you then please to your answer to question 1(b) and ask you to read question 1(b) and your answer, being the last one of the three set out there. Why, in your opinion, was in that context observation alone appropriate?
A. The reason is that most people have lumps and bumps, but they are usually benign. If we were to take out every pea sized lump that a patient had, it would collapse the medical system, basically. So what we do in terms of behaviour is look at if a tumour is round, it is staying stable, it is not changing in size, if it is not fixed to surrounding structures. These are all signs that a lump is more likely to be benign. Usually the treatment of cancers is not an emergency, you can afford to wait two to three months to look for change and so on.
The impression that I have got in this lady's case is that this lump stayed relatively stable quite a long time, and therefore it would be reasonable to observe the patient depending on a discussion of that observation by the patient.

Later he said:

A. ...As specialists we see a lot of patients with lumps. Every day of the week we see lumps. It is, if we were to remove all of them, it would be over-treatment. It would cause a lot of unnecessary surgery, a lot of unnecessary anxiety, a lot of unnecessary scarring. We have to use our clinical judgment and say 'This one is more likely to be benign, this one is more likely to be malignant', and obviously overlap has occurred. That's our medical judgment.
We put into that patient preference issues. Now if I have a patient that is losing sleep over a particular lump and she says, 'Look, I'm just so worried about this. My mother had cancer, I can't sleep at night, and all the GP wants to do is do another ultrasound, another ultrasound', and the patient is constantly going to doctors having ultrasounds, to me it is easier just to take it out. But it is an interaction that occurs between you and the patient. I do that every week. One patient will say, 'Look, I don't want to go under anaesthetic. I don't want to go and have anything done to me.' Or others say 'Look, I am just so worried about this'. I say 'Look, let's get it out.'

81 He agreed with Dr Vaughan's view that when a metastatic growth is clinically observable it has started growing some time before it is observed, and that it is very rare to see a leiomyosarcoma in the region of the right pectoral muscle.

82 In relation to the percentages expressed by Dr Vaughan, he said he did not know where he obtained the percentages. He said:

I do a lot of teaching to specialists. I teach specialists on tumour behaviour, and if one of my trainees said figures like that I would fail him. I just think it is, you know, to think that every twelve weeks you can get a 50 per cent reduction in outcome, is what Dr Vaughan is saying. To go from 55 to 50, then to 20, then to 10 every 12 weeks is ludicrous, in my opinion. It is not consistent with our observations of this disease and the literature.

He was then asked:

Q. Is there any scientific basis, as far as you are aware, for such an ability to quantify the percentages on a time span in the way that Dr Vaughan appears to have done there?
A. No.

83 Dr Boyages was asked to comment on Dr Vaughan's opinion that on the balance of probabilities an early diagnosis in May or June 1998 would have made any difference to the outcome or this particular plaintiff. He said:

A. I don't think it would have made any difference. As I said earlier, I think this tumour would have biologically spread to the scalp and to the organs. Prior to surgery, in my opinion.

The follow-up question was:

Q. What is your view as to whether the chances of cure would have been better?
A. I don't think the chance of cure would have been better.

In cross-examination he said:

I think this lady would have died of this ve r y aggressive cancer, irrespective of whether a surgeon took those lumps out or not, unfortunately.

84 Dr Boyages disagreed with the fact that the lump did not change in size for two years suggesting it was not a very aggressive cancer. He said it was a perplexing aspect of the case. He said that this is a very rare tumour, once in a million. The data would suggest that these high grade necrotic tumours metastasise. He suspected those metastases were there, but it took that long to get to the big size they came to.

85 He accepted as a general proposition that delay in diagnosis of cancers worsens the prognosis, and Dr Vaughan's statement that if people go around saying early diagnosis did not make a difference, we might as well all give up talking about doctors. He went on to say for some tumours early diagnosis is very important, but not all tumours.

86 Dr Boyages explained that there are two main categories of tumour: benign and malignant. The first decision point is trying to determine the behaviour of the tumour to decide whether or not to put it in the benign box or the malignant box. On the features that the general practitioner found this lump was, in his opinion, more likely to be benign. In his view the general practitioner correctly said:

Look, there is a lump there, it is palpable, we can observe it and see if it changes.

87 Dr Boyages disagreed that the general practitioner would need to be able to make an unequivocal diagnosis of no tumour before recommending no follow-up or observation. In his opinion the general practitioner needs to, based on judgment, determine whether again to place them in the probably benign box, or the probably malignant box, and then make a decision to observe versus do tests. He said "You cannot stick a needle in everything, it is impossible. We don't."

88 He said "It happens all the time", that he sees the patient and says, "Look, I think this is probably okay. Can you keep an eye on it and let me know if it changes, or speak to your general practitioner if it changes." At the tail end of many of his consultations his patients say, "Can you have a look at this lump, bump or skin lesion?" For some of them he says, "Look, that looks fine". He went on to say:

But there is a mutual responsibility if something changes, all the cancer messages are if something changes, I mean it is a Cancer Council message that if you spot changes, or if something darkens, go back. I think that is, you know, common sense, I guess. It is part of the health marketing campaign, so change is important, irrespective of what a doctor says.

89 Dr Boyages said it would be defensive medicine to say of every lump "This could be cancer?" He believes that to say so is totally inappropriate. The fear that it would put into people's lives would be enormous. He said:

That is part of the art of medicine. To say 'On the basis of probabilities we think this is benign' but to introduce the conception this could be cancer to everybody would instigate, you know, patients not sleeping at night, for the majority of lumps, which are benign. So yes, if we practised defensive medicine and said that to everything, it would make us sleep at night. But the patients would be totally anxious if we did that.

90 In Dr Boyages' view on the issue of hardness of the lump there was a difference from that of Dr Vaughan. He said there are very hard tumours which are benign. Leiomyofibromas are scarring. Dermatofibromas are firm. Just the hardness alone is not necessarily an indication of malignancy.

91 In his judgment if the lump is more consistent with a benign or a normal finding, then he would say something like "Let's keep an eye on it. Let me know if it changes." The reality is that many patients move between doctors and we have to put an onus of responsibility as well on the patient, particularly when it is very visible. On the other hand, if it is deep-seated, for example in the breast area, then you may need imaging to monitor a possible benign diagnosis.

92 His evidence was that many doctors would say "It looks all right." The judgement is part of the “art of medicine”. If the lump were relatively soft, perhaps lipofibroma; if it is firmer dermatofibroma, if it is hard myositis ossificans. He said most doctors are trained to think through a differential diagnosis and appreciate the remote possibility of, for example, a sign of synovial sarcoma, liposarcoma, lymphoma or unpigmented melanoma. He said:

The list is endless, but to give that litany of medical diagnosis to a patient I think is inappropriate.

He was asked a number of times his approach to discussing lumps with patients and he said:
Q. Why discuss it with the patient, and why ask whether the plaintiff is happy with that or not?
A. Essentially if, on the basis of belief, we say: I am 99 per cent certain this is benign, I am not going to start using the word cancer for the one per cent possibility or half per cent possibility; I think that is a very frightening prospect. On the other hand, if there are features there that would put it into the malignant characteristics, I would say: I am a little bit worried about this and I would think you need more tests and that is the type of language we use, because otherwise for every single lump that many of us in this room would have, we would be saying it is cancer, whether it is a bruise that has hardened or is a scar or a freckle that has got dark when someone has been on the beach. To say to a patient every time they walk in the room that that could be cancer, I think is inappropriate medicine.

93 In his opinion if an ultrasound had been conducted in May or June or July of 1998 it would not have shown features suggestive of malignancy. He defended that opinion on the basis that when it was probably ten times bigger than a pea size there was difficulty saying it had malignant features on an MRI scan, which is the best device available. He doubted whether any oncologist would have been able to say that this had features of malignancy.

94 When pressed he said he cannot exclude, on a 100 per cent basis, the chance that a delay in diagnosis in this case would have made a difference. He said that tumours behave in a bizarre way. Some tumours sit there and then grow. He said doctors do not know what those triggers are. For example, there is increasing evidence that increasing stress, for example, can reduce immunity. He said cancer is a very complex puzzle. There are genetic factors; there are hormonal factors. He said there was a 30, 40 per cent probability that the lesions in the pectoralis were metastatic at presentation.

95 The experts disagreed on a number of matters. I will now discuss the applicable principles used in considering their evidence and resolving the dispute.

Conflict Between Experts - Principles To Be Applied

96 Whilst expert evidence of acceptable medical practice is a useful guide for the Courts, it is for the Courts to adjudicate on what is the appropriate standard of care (see Rogers v Whitaker at 487).

97 The Court, however, cannot disregard expert evidence (see Anderson v The Queen [1972] AC 100; Regina v Hall (1988) 36 A Crim R 368). It must pay regard to the expert evidence but it is not bound by it, nor must it blindly follow it Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 at 661-662; Samuels v Flavel at p 264; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at pars 59, 87, 89; Brodie v Singleton Shire Council (2001) 75 ALJR 992 at par 355).

98 The Court is only entitled to reject expert evidence if there are other facts or circumstances which it accepts which are sufficient to cause it to reject the expert evidence (Taylor v Regina (1978) 22 ALR 599 at 618).

99 The value of expert evidence depends upon the authority, experience and qualifications of the expert and, above all, upon the extent to which his evidence carries conviction (Davie v The Lord Provost [1953] SC 34 at 39-40; Makita (Australia) Pty Limited v Sprowles par 59).

100 In cases where experts differ, the lay tribunal will apply logic and common sense in deciding which view is to be preferred or which parts of the evidence are to be accepted; (Holtman v Sampson [1985] 2 QDR 472 at 474; Makita (Australia) Pty Limited v Sprowles at par 71).

101 In the present case, the critical issue is whether Dr Watson breached the duty of care she owed to Ms Schiller in doing no more, at the consultation on 5 May 1998, than advising her to keep the lump under observation and to seek medical advice if the lump changed or if she remained concerned. The plaintiff, in her pleadings, also alleged negligence in the failure to diagnose the malignancy.

102 The thrust of Dr Vaughan's evidence was "New lump - no prior trauma, an ultrasound should have been done." He emphasised that every such presentation should be immediately investigated, or at least managed, with the intervention of the doctor. In essence he said it was not to the point that the cancer was rare, something should be done about it because of the possibilities. Much of his evidence concerned a discussion of the difference between the legal tool of proof by balance of probabilities and the medical concern in managing a person's health to be interested in possibilities. The doctor stated that although he had given expert evidence in fifteen to twenty cases he was not aware that the phrase "balance of probabilities" means "more likely than not". His answers to the Expert Conference Report must be seen in this light.

103 In my view the impact of Dr Vaughan's evidence was lessened by his focus on the standard of proof issue. When he came to give possibilities expressed in percentage terms they had no scientific basis, as was pointed out by Dr Boyages, who accordingly rejected them out of hand. In fairness to Dr Vaughan he was somewhat driven to talking in percentages in the context of the debate between him and senior counsel for the defendant concerning the question of possibilities.

104 To Dr Vaughan the balance of probabilities test is a meaningless category of reference. The construct, however, is important in hearing and determining an action where a person claims damages for negligence. The law is alive to deciding facts on the balance of probabilities, or looking to possibilities. Presently past events once proven are fact (see Malec v Hutton). In evaluating the hypothetical future the Courts look to possibilities usually expressed in percentage terms.

105 In my view Dr Vaughan's evidence was much less helpful than that of Dr Boyages and Dr Walsh who accepted, understood and applied legal standards in stating their opinions. This is of particular importance in this case when looking at the loss of chance issue. What the plaintiff must demonstrate is the loss of a valuable chance. That is not determined as a possibility but needs to be proven as more likely than not. Once that hurdle is overcome the Courts will look to the possibilities. I will discuss this issue further shortly.

106 Dr Boyages was a very impressive witness. Unusually, he has a doctorate in medicine relevant to some of the issues in this case. Importantly, he was able to back up his opinions with research material undertaken specifically for this case. More importantly, he was able to demonstrate that a very important feature of the sarcoma was its grade. I accept his opinion that the sarcoma was at all times most likely a grade 3 sarcoma. There is the possibility that Dr Vaughan's step by step process whereby cancer cells grow and disperse throughout the body in accordance with an individual's gene pattern is correct and has application to this case by general application. However, the much more specific research by Dr Boyages leads me as a matter of common sense to accept his opinion.

107 He also gave very impressive evidence concerning the social issue of screening for early cancers. Dr Vaughan's position that early detection in every case reduces the risk to the patient of a poor outcome is not supported by the research conducted by Dr Boyages. That lumps appear in individuals is common. The instance of cancer is very rare. There are no general screening facilities such as with breast cancer yet available. I accept Dr Boyages' opinion that the observation option was correct medically. In my view it was reasonable for Dr Boyages to reach that conclusion.

108 The plaintiff did not call a general practitioner to give expert evidence. This would have been helpful. Nevertheless, I am not prepared to draw a Jones v Dunkel inference because it was not unreasonable for the plaintiff to rely on Dr Vaughan. This is because the treatment of lumps is common to both specialists and practitioners.

109 However, Dr Walsh's evidence was particularly helpful in giving the Court an understanding as to what is reasonable in the treatment of tumours. I accept Dr Walsh's evidence from the general practitioner's perspective.

The Duty Of Care

110 It is not disputed that the first defendant owed a duty of care to the plaintiff in respect of her treatment of her. The relevant standard of care to be observed by a person of some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill (see Rogers v Whitaker (1992) 175 CLR 479 at 487). The defendant is a general practitioner and hence, in the present case, she is to be judged by the standards of a general practitioner (see Prosser v Eagle [2002] NSW SC 256 (unreported decision of Dunford J; pars 158 and 159).

111 The plaintiff relies on the particulars of negligence set out in her statement of claim. They are:

"(a) Failing to correctly diagnose the nature of the lump of which the plaintiff was complaining;

(b) Failing to carry out histological examination of a specimen from the lump or surrounding tissue;

(c) Failing to undertake a biopsy of the lump or surrounding tissue;

(d) Misdiagnosing the nature of the lump;

(e) Failing to refer the plaintiff for an MRI scan of the lump;

(f) Failing to refer the plaintiff to an appropriate specialist;

(g) Failing to approach the diagnosis and treatment of the lump with an appropriate level of suspicion;

(h) Failing to perform any appropriate diagnostic procedure on the lump or surrounding tissue;

(i) Failing to warn the plaintiff to keep the lump under close observation;

(j) Failing to offer the plaintiff the option of pursuing diagnostic procedure;

(k) Failing to warn the plaintiff that there were available diagnostic procedures that could identify the nature of the lump."

112 In my opinion the plaintiff has proved a breach of duty of care with respect to the failure by the doctor to record the size and consistency of the lump at consultation. However, the breach is not causative of the injury the plaintiff suffered.

Loss Of Chance

113 I have given careful consideration to the question of whether by the negligence I have found the plaintiff has lost the opportunity for effective treatment of the lump and ultimately developed an inoperable cancer. This is particularly so as the doctor's failure to record the size and consistency of the lump had the potential to obscure either to herself or other medical practitioners its progress. It was not until well after the cancer became inoperable that we see any objective noting of its size.

114 The plaintiff is required to prove, on the balance of probabilities, that the doctor’s negligence caused damage. Typical issues arising in medical negligence cases include emergency situations, such as a failure to recognise a patient presenting to Accident and Emergency and who is suffering a heart attack.

115 I approach the matter as guided by the High Court’s approach in Sellars v Adelaide Petroleum NL (1992-4) 179 CLR 332 at 349-350, 355, 363-4, 368. That was not a medical negligence case but a claim for damages under the Trade Practices Act (1974) (Commonwealth). The Court, calling loss of chance cases "past hypothetical situations" said damages in tort (and under the Act) are to be assessed by reference to the probabilities or possibilities of what would have happened. The same approach was later taken in Norris v Blake [No 2] (1997) 41 NSWLR 49 at 69 (Clarke JA), a motor accident case.

116 The issue of past hypothetical loss of chance was considered in Tran v Lam (Badgery-Parker J, unreported, 20 June 1997). That was a case involving breast cancer negligently treated. The patient could not prove that on the balance of probabilities the doctor's breach of duty had caused a worse outcome, either by leading to a shorter life expectancy or more extensive treatment or otherwise. The most she could prove was that on the balance of probabilities at the time when she was in the doctor's care there had been a chance that by prompt diagnosis, and the institution of appropriate treatment, she might have achieved a better outcome, if not a cure, at least a prolongation of life. His Honour proceeded to find on the balance of probabilities there was such a significant chance. His Honour then considered the extent of that chance, acknowledging that this involved somewhat arbitrary judgments and made findings consistent with the patient not having to prove on the balance of probabilities her condition had been worsened by the negligence. He awarded heavily discounted sums for future wage loss and general damages.

117 The applicability of the loss of chance argument was considered in CES v Superclinics (Australia) Pty Limited (1995) 38 NSWLR 47 at 56-57 per Kirby J; See also Veivers v Connolly (1994) Aust Tort Reports 81-309 which involved a claim for the additional costs of raising a gravely handicapped child born with congenital rubella embryopathy. The mother said she would have had an abortion had she known the child she was carrying had rubella. Having found negligence, the trial judge assessed damages and then, noting it was a claim for the loss of opportunity to terminate the pregnancy, reduced damages by five per cent to reflect the possibility that she may not have been able to obtain a termination.

118 I have concluded the evidence in this case does not establish on the balance of probabilities that the doctor’s negligence, in not recording the size and consistency of the lump, is causative of injury to the plaintiff. Further, I am not satisfied that the plaintiff has been proved that a valuable chance has been lost. Accordingly the plaintiff is not entitled to recovery damages for loss of chance as a result of the negligence of the doctor, as I have found it to be.

Findings

119 I make the following findings.

(a) The patient is an in-patient at Gosford Hospital. She is dying of cancer, diagnosed as leiomyosarcoma.
(b) That sarcoma is very rare and occurs in about one person per million per year.

(c) I have recorded my findings concerning the consultation earlier in this judgment.

(d) I accept the progress of the plaintiff's illness from March 2000 to the present as earlier outlined by me.

(e) I accept the evidence of Dr Boyages and Dr Walsh and each of their answers to questions in the Joint Experts Conference.

(f) I am of the opinion there is no inappropriate diagnostic delay.

(g) I find that the defendant did not breach her duty of care to the plaintiff with respect to any of the particulars identified in this judgment from the statement of claim, except that she failed to record the size and consistency and other features of the lump.

(h) The failure to record the size and consistency of the lump did not lead to the loss of chance by application of the legal principles discussed in this judgment.

(i) By May of 1999 the plaintiff's cancer was incurable.

Damages

120 It is not necessary, having regard to my conclusions, to deal with the question of damages but, as is the practice of trial judges, I will make some findings in that respect in case my decision is challenged.

121 The particulars of injury are set out in the statement of claim.

They are:

(a) Loss of opportunity for effective treatment of the lump;

(b) Loss of the opportunity of avoiding the development of the two lumps;

(c) Loss of the opportunity of avoiding metastasis;

(d) Loss of the opportunity of avoiding inoperable cancer;

(e) Absence of treatment of the lump;

(f) Development of metastasis;

(g) Development of inoperable cancer;

(h) Loss of expectation of life;

(i) Need to undergo chemotherapy;

(j) Shortening of life;

(k) Pain and suffering;

(l) Depression;

(m) Anxiety.

122 The particulars of disability are as follows:

(n) Depression;

(o) Anxiety;

(p) Pain;

(q) Development of metastasis;

(r) Development of inoperable cancer;

(s) Need to undergo chemotherapy;

(t) Inability to work;

(u) Loss of expectation of life.

123 The plaintiff is thirty-six years of age. She married in 1998 and separated in 2000. She was later divorced. There is one child of the relationship, Natalie Labuschewski, born on 7 April 1999.

124 Prior to April 1998 the plaintiff was in good health. When a child, the only surgery she underwent was an appendectomy and tonsillectomy. She suffered scarring to the skin of her face and arms and legs as a result of an allergy she developed when working in a paint shop at the age of about sixteen or seventeen years. Otherwise she had not suffered any significant injuries or medical conditions.

125 She was educated to Year 10, completing her education at Gorokan High School. She held a number of jobs, including salesperson and secretarial work. At about the age of twenty-one she moved to Queensland where she was employed for about four years in an automotive workshop performing office duties. She then moved to Cloncurry and worked for the Council for a period of approximately eight or nine months sorting out archives, paperwork and files. She then worked as a bar attendant at a hotel in Cloncurry for a period of two to three years. In about 1996 she moved to Kingaroy and obtained a CES computer traineeship with the Kingaroy Council for a period of about six months. She also worked as a bar attendant and undertook a computer course at the TAFE. After she met her husband she lived with him on his farm. She attended to the day to day running of the farm whilst he went to work. In 1998 she was employed as a bar attendant for a period of about nine months and it was at this time that she became pregnant with Natalie, that is at the end of 1998. She finished work at the hotel as it was her intention not to return to the workforce until her daughter was about four or five years old and at pre-school.

126 Last Friday the plaintiff's schedule of damages was delivered to the court. This needed some refinement. A further schedule of damages was delivered to my chambers this morning.

127 I make the following comments concerning the schedule. If the plaintiff is entitled to a verdict she should receive general damages. She has had a very difficult time in the last few years and, notwithstanding this, should she have been entitled to a verdict in my view a figure of $100,000 would be reasonable. She would be entitled to interest on that sum.

128 There is a claim for past economic loss. So far as future economic loss is concerned, I make these findings: the plaintiff was motivated to work. She appears to have worked quite hard to achieve some marketable skills. There have been gaps in her employment. I am of the opinion that an allowance of $100 or $150 a week for future economic loss would have been reasonable. She would be entitled to something for loss of superannuation.

129 So far as past domestic assistance is concerned, given my findings it is quite impossible to assess this sum. However, the rates claimed are appropriate and I make the same comment with respect to the Sullivan v Gordon claim. The plaintiff would be entitled to her out of pocket expenses of $6,825.80.

130 This judgment has been delivered extempore in obvious circumstances. There will be a verdict for the defendant and judgment accordingly. I reserve the question of costs.

Last Modified: 02/06/2003