Schultz v Bailey - [2006] NSWSC 727

CITATION: SCHULTZ v. BAILEY [2006] NSWSC 727

HEARING DATE(S): 6, 7, 8, 9, 10, 13, 14 February 2006

JUDGMENT DATE :
20 July 2006

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Judgment for the defendant. The proceedings may be re-listed for any consequential orders, if required.

CATCHWORDS: Negligence – medical negligence – patient repeatedly expressed anxiety about family history of cancer and the possibility that he had symptoms indicative of bowel cancer – general practitioner made arrangements with specialists for tests in relation to the symptoms – patient’s anxiety escalated – general practitioner diagnosed patient’s delusion beliefs as “psychotic” – general practitioner prescribed an anti-psychotic drug – patient suffered catastrophic but rare side-effects from the anti-psychotic drug – patient was hospitalised and underwent significant treatment for the side effects – whether the general practitioner was negligent in diagnosing psychosis

LEGISLATION CITED: Civil Liability Act 2000

CASES CITED: Dell v. Dalton (1991) 23 NSWLR 528

PARTIES: SCHULTZ, Rex John v.
BAILEY, Dr. Belinda

FILE NUMBER(S): SC No. 20159 of 2003

COUNSEL: Plaintiff: J. Anderson
Defendant: S. Kalfas, SC.

SOLICITORS: Plaintiff: Farrell Lusher
Defendant: P. Tsaousidis

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

THURSDAY 20 JULY 2006

No. 20159 of 2003

REX JOHN SCHULTZ v. DR. BELINDA ANN BAILEY

JUDGMENT

1 HIS HONOUR: The plaintiff commenced these proceedings against the defendant, his former treating general practitioner, by statement of claim filed on 25 June 2003 claiming damages in respect of a condition known as pancytopenia (a condition involving a failure of the bond marrow to produce all blood cells). That condition, in turn, led to a series of related and cascading medical conditions (including a bowel perforation) which were life-threatening. The plaintiff ultimately was admitted to St. Vincent’s Hospital for a prolonged period in the year 2000.

2 The plaintiff essentially alleges that the defendant misdiagnosed him on 20 July 2000 as having a psychotic condition (namely, a delusional state) and in consequence wrongly prescribed the drug Melleril to treat him, a drug which was known to carry a risk, albeit a low risk, of side effects including the risk of pancytopenia.

The plaintiff

3 Mr. Schultz is presently 53 years of age having been born on 17 September 1952. He is married and has four children. He was educated at Leeton High School to the level of School Certificate and thereafter undertook manual contract work with the State Rail Authority in January 1970.

4 In 1974, he suffered a back injury and went off on compensation. He stated thereafter that the back injury affected all areas of his life, in particular, making it difficult for him to stand or walk for long periods. Since 1991, he has been receiving a disability pension.

5 The plaintiff’s wife has worked for some years as an enrolled nurse formerly at Leeton Hospital and presently at Lithgow Hospital. (She became a registered nurse in July 2001.)

6 The plaintiff stated in evidence that he, in effect, reversed roles with his wife and he cared for the children while she worked on a full-time basis.

7 In 1995, he was diagnosed with a non-insulin dependent diabetes and was prescribed Diamicron for that condition. In evidence he stated that he had not prior to 2000 suffered from depression or any mental illness.

8 In terms of family history, he said that both his father and grandfather had had prostate cancer and that a cousin died from breast cancer at the end of 1999. In cross-examination he stated that during the period that he was seeing Dr. Bailey he was concerned that if he had cancer “he would not be real good” because his cousin had died. However, he also stated that he was never of the view that he had cancer and was going to die as a result of it.

9 The plaintiff said that until June 2000 he was in good health but then in that month started to pass blood. He stated that he noticed the passing of blood whenever he had a bowel motion.

The consultation on 12 July 2000

10 A central fact in issue was whether the plaintiff on 20 July 2000, when he saw Dr. Bailey, had developed or was manifesting both a depressive condition and delusional beliefs that he had contracted cancer. He stated that he initially had an appointment with and saw the defendant, Dr. Bailey, on 12 July 2000. He said that he had not seen her before that time at the practice. On the latter date his regular doctor was unavailable.

11 At the consultation on 12 July 2000, he gave a history of passing blood and in response to the doctor’s question told her that this had been occurring for approximately one and a half weeks. Dr. Bailey inquired as to the colour of the blood and as to whether it was bright or dark and he said that it was bright red. The plaintiff then said that he asked Dr. Bailey whether the passing of blood could be related to a haemorrhoid or from being constipated, as he had been constipated in recent times prior to that consultation. Dr. Bailey replied that she would need to examine him and asked whether he had any reservations. He said that he did not.

12 After the examination, he inquired as to the results. Dr. Bailey responded that he had a small haemorrhoid high up inside. He inquired whether that was the reason for the bleeding to which the doctor replied that many people had small haemorrhoids like the one that he had without any problems, that is, without even knowing it.

13 The plaintiff then said that Dr. Bailey advised that he would need to have further investigation, in particular, a colonoscopy. He inquired what that was and she explained it to him. The doctor advised that the examination could not be done in Leeton and that he would have to go to Griffith to see a Dr. Hayes. Dr. Bailey inquired as to whether he wished her to make an appointment. The plaintiff indicated that he did. Dr. Bailey then rang Dr. Hayes’ rooms and she said that she was told that Dr. Hayes was booked out for three months. The plaintiff says that he said for her to go ahead and make the appointment as there did not appear to be any alternative.

14 After the appointment was made, the plaintiff says that as he was leaving Dr. Bailey’s rooms he asked if “… this could have anything to do with bowel cancer” and Dr. Bailey said she “couldn’t tell, couldn’t comment until I have the results of the colonoscopy…”.

The consultation on 18 July 2000

15 On 18 July 2000, the plaintiff returned to the practice and this time saw a Dr. Horsley. He had asked to see Dr. Bailey but she was unavailable. The plaintiff said that he went to see Dr. Horsley because the bleeding was occurring in larger volumes and he was worried and concerned about it. He said that he expressed his concern to Dr. Horsley and that the doctor prescribed him Cipramil, a medication for depressive conditions. The plaintiff took the prescription to the pharmacy and it was filled that day and he commenced taking Cipramil tablets on the same date. He said that he did not notice any change in his condition and on the morning of 20 July 2000, two days after seeing Dr. Horsley, he again telephoned the practice, for the reason that the medication was not having any effect on the bleeding. He stated that Dr. Horsley had not explained to him why Cipramil had been prescribed but that he did say it might help him relax. He says that he did not feel relaxed following the taking of the medication. This is no doubt due to the fact that Cipramil can take a week or so to take effect.

The consultation on 20 July 2000

16 On 20 July 2000, the plaintiff made an appointment to see Dr. Bailey. He said in evidence that he had first rang the medical centre and asked to speak to Dr. Bailey and did so. He said that he advised her that he was bleeding more and wanted to see her. Dr. Bailey advised that she could fit him in in the afternoon. The plaintiff attended later that day. In cross-examination he agreed that he impressed upon Dr. Bailey that he was so concerned that he wanted to see her if possible that day.

17 On entering Dr. Bailey’s rooms, the plaintiff says that Dr. Bailey inquired as to how he was feeling, to which he said “I wasn’t feeling very good”.

18 The plaintiff says that he advised Dr. Bailey that he was passing more blood than when he saw her on 12 July and that it was consistent every time. He advised that he had tried to see her on the day he saw Dr. Horsley and that Dr. Horsley had prescribed Cipramil. He advised that the medication had not produced any effects.

19 Dr. Bailey inquired as to how he was sleeping. He said he was not sleeping very well. She inquired as to whether he was waking up early, to which he replied in the affirmative. She asked about his appetite and whether there had been any change. He replied that he did not feel like eating much any more.

20 He said that after a pause he put his head down on his arm and Dr. Bailey reached out and touched his arm and he became teary. He said “I just felt overwhelmed”. On inquiry from Dr. Bailey as to whether he had ever thought of taking his own life he says that he said “No”, adding that he was too much of a coward to do that.

21 Dr. Bailey advised that she was going to prescribe some medication which she said was Melleril.

22 The doctor gave him her mobile phone number, a contact number, and said that the Melleril would help relax him and calm him down. She told him that she would like to see him in a couple of days. An appointment was made to see Dr. Bailey again on 22 July 2000. Apart from advising him that the Melleril may make him feel drowsy, he claimed that he was not given any advice on any possible side effects associated with taking the medication.

23 The plaintiff took the prescription to the pharmacy and obtained the Melleril tablets.

24 On 21 July 2000, the plaintiff rang Dr. Hayes’ rooms in an endeavour to bring forward the appointment earlier than the three months. He said he was successful in that regard and an appointment was fixed for 7 August 2000. He said that he felt relieved at having brought forward the appointment. Dr. Hayes wrote to Dr. Bailey on 9 August 2000 (Exhibit 2) reporting that he had arranged a barium enema because the plaintiff was “petrified that he has cancer”.

The consultation on 22 July 2000

25 On 22 July 2000, the plaintiff returned to Dr. Bailey. On entering the surgery on this occasion, and upon inquiry by Dr. Bailey, the plaintiff said that he was still concerned about the bleeding, was still worried about it. It was at some point at this stage that he advised that his wife was waiting in the waiting room. Dr. Bailey advised that she would like to speak to her and she then entered the consultation room. He then says that the only thing he recalls is that two prescriptions were written out by Dr. Bailey. One was for 10 milligrams of Melleril to be taken three times a day and the other was for 25 milligrams of Melleril to be taken at night. There was some discussion about a forthcoming vacation which the plaintiff had planned. Mrs. Schultz inquired of Dr. Bailey whether the Melleril would make him drowsy to which Dr. Bailey is said to have responded that the plaintiff could regulate it, that he didn’t have to stick “strictly to the format”. No further appointment was made at this point.

26 The plaintiff and his wife and son, Brett (who is blind), went on a holiday to Mount Victoria on 24 July 2000. He continued to pass blood and was concerned about what was happening. He said that he was still anxious. The plaintiff says that during the vacation he took the Melleril as recommended, three lots of 10 milligrams during the day and 25 milligrams at night. He continued to have restless sleep whilst at Mount Victoria. He stated in evidence that it was whilst he was at Mount Victoria that he first noticed a change in his sleeping pattern. He also noticed whilst on holiday that his nose was becoming blocked and that was why he was waking up.

The consultation on 2 August 2000

27 On 31 July 2000, the plaintiff returned to Leeton and attended on Dr. Bailey on 2 August 2000 because of “what was happening to me when I was awake and because of my having a blocked nose”. He advised Dr. Bailey that whilst he was away he kept waking because his nose was becoming blocked. He was waking two, three and sometimes four times a night and he asked Dr. Bailey whether it was anything to do with the medication. Dr. Bailey advised him not to be concerned and that he could alter the night time dose, so that he would only take one of the 25 milligram tablets and not the other one. He said that no further arrangements were made for a further consultation.

28 As mentioned earlier, on 7 August 2000, the plaintiff attended on Dr. Hayes in Griffith and underwent a sigmoidoscopy examination. Dr. Hayes advised that so far as he could tell everything “looked normal”.

29 The plaintiff said that Dr. Hayes said that he was booked out for the following three Mondays for a colonoscopy but that he could fit him in to have a barium enema on 31 August 2000. Subsequently, that examination had to be re-scheduled for 14 September 2000. It was performed at Leeton Hospital.

30 When asked, the plaintiff said he had no recollection of attending on Dr. Bailey on 23 August 2000 even though an entry in the doctor’s notes suggested that he had.

The onset of sepsis and agranulocytosis/pancytopenia

31 At the end of the first week in September 2000, the plaintiff said that he commenced to experience night sweats every few nights. He developed a sore throat and his throat felt dry “and it was worse than a cold”. He said that he thought he had a virus. He was still taking Melleril at that stage.

32 The barium enema examination was conducted on 14 September 2000. He rang on either 15 or 18 September 2000 to obtain the results. A woman at the practice advised him “everything was clear except for diverticulitis”. He said that he was extremely relieved to receive that information.

33 He recalls attending at Leeton District Hospital on 17 September 2000, a Sunday, but does not remember much at all about what occurred. He can recall being wheeled in in a wheel chair, but doesn’t remember much after that. He agreed that he was sent home and was readmitted to Leeton District Hospital on 20 September 2000 and was subsequently transferred to Wagga Base Hospital on 21 September 2000. He does not recall much detail about being transferred.

34 Subsequent to admission to Wagga Base Hospital he recalls speaking to a Dr. Smee. He could hear the doctor and his wife talking about the results of a blood test. He said that they seemed to be getting concerned and worried and he asked what was going on. Dr. Smee was explaining to his wife the results and there was discussion about “neutrophils”. He inquired as to the meaning of that term and heard the doctor in discussion saying “you have no neutrophils”. He inquired as to what that meant and Dr. Smee is said to have said “you can’t live without neutrophils”. On hearing this he said he was “pretty worried. I was pretty upset … it sobers you up when you’re told – you’re led to believe that you’re going to die”.

35 He said that he had been optimistic before this conversation but after the discussion on the subject of neutrophils, he said that “I just assumed I was dying”.

36 On 24 September 2000, the plaintiff was transferred to St. Vincent’s Hospital in Sydney by air. He said that he didn’t know that he was in Sydney, only that he was travelling in an aeroplane. He said that he drifted in and out of consciousness whilst on the plane. He said that he was still suffering from a fever and was disorientated.

37 Bone marrow biopsies were performed subsequent to his admission to St. Vincent’s Hospital (one was performed on 25 September 2000). He was also seen by a registrar in psychiatry on a few occasions during his admission.

38 On 29 October 2000, the plaintiff said that he suffered an extreme pain “lower down towards the bottom in my abdomen”. He said the pain was excruciating and had felt nothing like it before. He recalls the nursing rushing around and he was taken urgently into surgery. It was discovered in surgery that the plaintiff had suffered multiple perforations of the bowel. A colostomy was inserted. On waking his pain had gone and subsequently he underwent a further procedure on 31 October 2000 when the wound was closed.

39 Following surgery on 29 October 2000, the plaintiff remained unconscious and intubated until 7 November 2000. On 1 November 2000, he complained of chest pain. He was found to have suffered a myocardial infarction.

40 The plaintiff left hospital on 22 November 2000. At that time he was in a wheelchair as he couldn’t walk more than about three metres. He said that he had lost 50% of his body weight, and he was then weighing approximately 43 kilograms, his present weight being now over 80 kilograms.

41 Subsequent to his discharge, he was seen by Dr. Stangster, general practitioner, but he did not again see Dr. Bailey as he said that he did not want to see her. In the discharge referral letter (Exhibit E, p.91), it was stated that the plaintiff was “admitted for investigation of pancytopenia? secondary to drug? Melleril”. In that document, the following are recorded:-

• A principal diagnosis of pancytopenia.

• Operations/procedures including Hartman’s procedure, terminal ilium resection and appendectomy.

42 During the plaintiff’s admission to St. Vincent’s Hospital, he was largely managed by Dr. Sam Milliken, haematologist.

43 The subsequent care was essentially managed by Dr. Henry Hicks, and Dr. Gerard Carrol, cardiologist who he saw on two subsequent occasions.

44 When at home following his discharge from hospital, he received assistance from both his wife and his sister in terms of personal care.

Mrs. Schultz’s evidence

45 The plaintiff’s wife gave evidence that in July 2000 her husband became anxious about passing blood and that he was concerned that it may have been indicative of bowel cancer. He rang a help line. She did not consider that he was depressed at the time of the consultation on 18 July 2000. She said that he had discussed the fact that his cousin had died in 1999 from breast cancer.

46 Mrs. Schultz said that her husband had not indicated that he was concerned that he had cancer and was going to die because his cousin had cancer and that his father than died of prostate cancer. She said he was worried about the waiting time to find out whether he had cancer. From about 18 to 20 July 2000 he was experiencing early morning wakening and had no appetite. She repeated that he was anxious at this time. She said that before her husband went to Wagga Wagga Hospital he had not said that he thought he was going to die as he “didn’t know”.

47 Mrs. Schultz said her husband returned to the medical practice following the prescription of Cipramil as he did not feel any different and wanted to see if he could bring forward the colonoscopy and because he was anxious.

48 She recalled at St. Vincent’s giving a history about her husband’s condition to a Dr. Berry. She told him her husband had had depression. She discovered this when he was put on Melleril and Cipramil. She said that her husband had not said to her prior to his admission to St. Vincent’s that he believed he was going to die because he had cancer. She had not told the doctor at St. Vincent’s that her husband was delusional in his belief that he was going to die from cancer. She did not tell the doctor that following the prescription of Cipramil that her husband had become paranoid that he had colon cancer. She had never regarded him as irrational or obsessed about a concern that he had cancer prior to the admission to St. Vincent’s. She, however, admitted when asked about the history given by her at St. Vincent’s that she had said “he thought he was going to die”. She stated that she had not told a doctor at St. Vincent’s that her husband had an obsession with colon cancer.

49 Mrs. Schultz denied that her husband expressed a belief that he had colon cancer or that he believed that he was going to die as a result of that. Mrs. Schultz said in her evidence in chief that her husband had never indicated that he might consider taking his own life and had never acted irrationally.

The plaintiff’s state of mind whilst treated by Dr. Bailey

50 The nature and level of the plaintiff’s concern, anxiety or depression and his belief fact that his bleeding was or could be related to cancer was a central matter raised in the cross-examination him and in the evidence of Dr. Bailey. It was put to the plaintiff that during the period that Dr. Bailey treated him, he had a particular obsession with the prospect that he had cancer. On this issue the plaintiff’s and the defendant’s recollections as to whether the plaintiff had made statements to this effect were diametrically opposed.

51 When the issue was raised initially with the plaintiff in cross-examination, he said that he was concerned “… because I was bleeding there is a possibility it could be cancer, yes”. He claimed that his memory of events concerning the consultations with the defendant were clear, notwithstanding that it was put to him that he could not recall the consultation with the defendant on 23 August 2000, which would suggest that his memory was far from perfect.

52 Whilst the plaintiff at first resisted the suggestion that he was depressed about the possibility of having cancer but was anxious about it, he fairly readily conceded that “I was anxious, I suppose you could say I was depressed’.

“Q. Well you made the distinction before when I asked you about being depressed and you said you were anxious. Are changing, in effect, what you were saying? A. No, I’m not. I was anxious insofar as I didn’t know what was causing the bleeding and I was depressed, I suppose you could say, if it was the worst case scenario, but I didn’t know.”

53 Following further cross-examination as to whether the plaintiff had been preoccupied, obsessed or terrified as to the prospect that he had cancer and would die, including in particular, his state of mind following the performance of the sigmoidoscopy by Dr. Hayes, the plaintiff stated that, as at 7 August 2000, after the latter procedure “nothing had changed. I was still anxious, I was not to the point of being terrified as has been said, or to me anyway”. On the important issue of his mental or psychological state during the period by Dr. Bailey treated him, he rejected the suggestion that he was convinced, at that time, that he had cancer and was going to die but that “I was very anxious, yes”.

The Melleril prescription

54 The defendant confirmed that she prescribed an anti-psychotic drug for the plaintiff, known by its generic name, Thioridazine Hydrochloride (the brand name of which is Melleril). The plaintiff had been prescribed Cipramil (an anti-depressant) on 18 July 2000 by Dr. Horsley. Dr. Horsley’s notes recorded that the plaintiff was very anxious.

55 When Dr. Bailey prescribed Melleril, she directed the plaintiff to continue taking Cipramil. The pharmacological reference known as MIMS Annual 1996 records that the indication for Melleril was use as “treatment of acute functional psychosis, eg., schizophrenia, mania or psychotic depression. Dr. Milliken, who treated the plaintiff, gave evidence that the risk of an abnormal blood count in association with Melleril was of the order of a risk of between one in 1,000 and one in 10,000.

56 Dr. Phillips, consultant psychiatrist, assessed the plaintiff on 6 July 2006. He stated that like all anti-psychotic drugs, Melleril is known to have side effects including, in particular, various neurological problems. The drug also has the potential to induce long term movement disorders and is known to have the capacity to suppress cell generation in the bone marrow, with the potential for inducing organic ulocytosis (a condition which prevents neutrophil white cells from forming – these being the body’s guardian against infection) or, more rarely, pancytopenia (a reduction of all three major elements, the red blood cells, the platelets and the white cells, which are the neutrophils and neukocytes) (which the plaintiff developed), and which involved a failure of the bone marrow to produce or cause a deficiency in the production of all blood cells). The specific risk of agranulocytosis (a reduction in the white cells) is noted in MIMS.

57 Dr. Eric Fisher, a general practitioner since 1956, was called in the plaintiff’s case. He had served as deputy chairman of the Medical Education Committee of the Council of the Royal Australian College of General Practitioners, was a member of the New South Wales Faculty Board of the Royal Australian College of General Practitioners and was Honourary Secretary of the Council of that body for a period of years.

58 Dr. Fisher stated that a country general practitioner in 2000 would have to consider very carefully the introduction of Melleril into the management of a patient exhibiting major depression and associated anxiety. He considered that a general practitioner would be aware of other side effects of Melleril, namely, tardive dyskinesia, cardiac arrhythmias and extrapyramidal symptoms. He considered that in prescribing medication, a doctor had to balance up the efficaciousness of the drug with its possible effects on the particular patient. Warnings had issued as to the fact that Melleril was unwise to use because of its side effects. Restrictions were placed on it and the Schedule of Pharmaceutical Benefits had restricted its use in treatment for psychotic disorders. He himself had not prescribed it for 15 years.

59 In his report dated 24 January 2003, Dr. Fisher noted:-

“… he had a phobia about colon cancer since he had rectal bleeding despite negative sigmoidoscopy and a barium enema revealing diverticular disease. This was manifested by such statements as ‘I am going to die’ and ‘I’ve got cancer’. These were recorded as delusional but he had not had hallucinations. In my opinion, the management of depression in general practice requires a comprehensive history recording not only the patient’s symptomatology but also antecedent and family history as well as exploration of emotional losses and other trigger factors in the causation of depression. Only when this has been done would a prudent general practitioner exercising ordinary skill and care, in my opinion, prescribe medication. There were many medications available in 2000 to treat depression depending upon symptomatology and the diagnosis …”

60 Dr. Fisher went on to state that there were antidepressant drugs available with an anxiolytic effect that did not have the propensity to produce pancytopenia.

61 Dr. Phillips described Melleril as “an old fashioned anti-psychotic agent” now prescribed for “very specific purposes only”. He explained in evidence that anti-psychotic drugs principally work on disorganisation of the mind described as “psychotic” by which is meant “a person having a clear break from reality …. A clear breach in terms of developing delusions, hallucinations or some fairly gross forms of thought disorganisation”.

62 Aside from neurological and other less serious side effects (including dry mouth, blurred vision and reduction in blood pressure) there were two types of known severe side effects. The first was disruption of the rhythm of the heart (prolongation of the actual process of rhythm caused by the agent which can be life threatening). The second was the rare but well recorded effect involving the suppression of blood cell lines, the white cells and the platelets. The more extreme side effect of this nature is pancytopenia.

63 Dr. Fisher stated in evidence that it would not be appropriate to treat an anxiety condition or depression with an anti-psychotic drug. Cipramil was an appropriate drug to prescribe for a patient who complained of marked anxiety as in the plaintiff’s case when he was seen on 18 July 2000. Cipramil can take approximately seven days to have effect. In the event that subsequent to its prescription the patient was still exhibiting anxiety or depression, then Dr. Fisher’s choice of drug would have been a benzodiazepine (such as Valium) rather than a phenothiazine such as Melleril. He stated that a short term use of benzodiazepines is a good form of treatment for depressive and concurrent anxiety symptoms.

64 A benzodiazepine administered orally would take 30 minutes or an hour to take effect. Dr. Fisher emphasised, however, that Cipramil, if there was a period before the Cipramil could take effect and depression developed then, in such circumstances, if an anxiolytic was regarded as essential there were many anxiolytic and antidepressant drugs with an anxiolytic effect available which did not have the propensity to produce pancytopenia. He emphasised that “you don’t use an anti-psychotic for anxiolytic purposes until you have prescribed benzodiazepines or something else. That’s the accepted wisdom in general practice …” (t.145).

65 The defendant justified her prescription of Melleril instead of benzodiazepine on the basis that she claimed the plaintiff, on 20 July, suffered from anxiety of delusional intensity. The absence of any record or reference in the defendant’s notes to either psychotic symptoms or of a diagnosis of a psychotic condition raised a factual and diagnostic issue of central importance, the resolution of which is fundamental to the liability issue in these proceedings. Dr. Fisher agreed that, if the plaintiff was psychotic when seen by the defendant on 20 July, then anti-psychotic medication would have been appropriate, adding, “but it would also be important for it to have been recorded that it was believed he was psychotic and that was the reason for giving Melleril …” (t.150). He later observed that a diagnosis of psychosis is a very serious diagnosis. I will return to the facts concerning the defendant’s diagnosis below.

66 The defendant called evidence from a general practitioner, Dr. Norman Walsh, who had practised as such since 1983. Dr. Walsh’s reports were dated 14 April 2004 and 23 August 2004 (Exhibit 3).

67 Dr. Walsh’s opinion on the use of an anti-psychotic such as Melleril did not identify the reservations expressed by Dr. Phillips and Dr. Fisher on the use in 2000 of the “older generation” anti-psychotic medications such as Melleril. He also expressed different views on the appropriateness of prescribing a benzodiazepine (eg., Valium) for the plaintiff on 20 July 2000. Dr. Walsh’s opinion on such fundamental issues called for a close examination of both the opinions expressed in his first report and the bases for them.

68 Dr. Walsh stated in his report of 14 April 2004 (p.4) that the plaintiff had clearly expressed “delusional beliefs” about a likely diagnoses of cancer and the inevitability of his death as a result of such a cancer. Whilst he said he relied on Dr. Bailey’s notes, when asked in cross-examination about the absence of any note indicating any delusional or psychotic behaviour on the part of the plaintiff in the notes, he agreed, stating “not in that entry, no”. Somewhat inconsistently with the comments in his report, he added that the notes were deficient in identifying the reason for the use of “an anti-psychotic”:-

“Q. As is your main criticism insofar as you have one the fact that it does not record the reasons for the depression that has been diagnosed?

A. No, that isn’t my main criticism. My main criticism is that it doesn’t sufficiently justify the use of an antipsychotic when, if the practitioner feels there is reason to use an antipsychotic, it, even in the country town where medical records are on public view practically, it is appropriate to at least give the bare bones of the reasons for the decision.”

69 Dr. Walsh added a little later (t.324) that his criticism related to an assessment of whether Dr. Bailey was dealing with an overvalued idea or something that was becoming much more of a “psychotic flavour”.

70 Given that there was in fact no entry made by Dr. Bailey in relation to any consultation, including that of 20 July, as to psychotic symptoms or to a diagnosis of psychosis, Dr. Walsh appeared to have difficulty explaining in cross-examination how then he had concluded in his report that delusional beliefs were documented in the defendant’s notes. When pressed, he identified a number of matters which he endeavoured to rely upon in support of the claimed documented delusional state. These include:-

• The fact that the notes had referred to anxious +++ re diagnosis of the possibility of cancer.

• That there had been a long consultation “that could only have been indicated because there was a need to have counselling as a result of the anxiety” .

• The fact that the plaintiff had a telephone call with Dr. Bailey.

71 Dr. Walsh added:-

“I would have difficulty believing that simple, having difficulty believing that simple anxiety could cause this intensity of need for medical support.”

72 He again referred to the fact that reassurance had been given, the patient had returned needing further reassurance “all over again” followed by the statement:-

“That is one of the hallmarks of psychotic behaviour, and when you have a belief that can’t be shifted by rational argument or reassurance.”

73 Dr. Walsh again reemphasised the fact the plaintiff appeared to be resistant to a telephone counselling session and face to face counselling stating that as a general practitioner who had seen the situations many times, “I have not seen anxiety on this level before. It would raise a suspicion of psychotic concern that were congruent with the depression, that is certainly not by itself diagnostic and I will concede there is nothing in the notes of themselves to say psychosis”.

74 Given Dr. Walsh’s clear statement that Dr. Bailey’s notes supported the expression of delusional beliefs by the plaintiff, his evidence in that respect was found wanting. Having observed Dr. Walsh give the evidence and having re-read closely his evidence, I found his evidence argumentative and unsatisfactory in seeking to adhere to the statement that Dr. Bailey’s notes evidenced delusional beliefs. Dr. Walsh appeared, in particular (at t.324-325) to be endeavouring to support a diagnosis of a psychotic disorder on a basis which quite lacked the disciplined analysis evident in the reports and oral evidence of Dr. Phillips. It was only at the conclusion of his explanation that he appeared to be driven to “concede” that there was in fact nothing in Dr. Bailey’s notes to support a diagnosis of psychosis.

75 Dr. Walsh confirmed that there was no indication on 18 July 2000 that the plaintiff had manifested psychotic symptoms. In later evidence, it became apparent that Dr. Walsh was relying upon entries in the St. Vincent’s Hospital notes to support his opinion (t.323) as to the existence of psychotic symptoms present on 20 July 2000.

76 In his report of 14 April 2004 (p.2), Dr. Walsh referred to the consultation on 2 August 2000 and noting the dose of Melleril was decreased and that “there is a suggestion of some persistent delusional thoughts regarding an inevitable diagnosis of cancer at this consultation …”. When asked in cross-examination as to the basis for this statement, Dr. Walsh referred to the number of consultations that had taken place relating to the illness (t.233):-

“My answer is that the frequency with which the plaintiff has attended and called the doctor in this short period of time to me suggests, but is not conclusive (sic) proof of delusional beliefs.”

77 The evidence of both Dr. Fisher and Dr. Phillips explained in considerable detail the basis for the making of a diagnosis of psychosis, a diagnosis of evident significance and gravity. The issue as to any evidence of delusional beliefs was taken up with Dr. Walsh at t.334:-

“Q. Where does one find the persistent – or evidence of persistent delusional thoughts regarding the inevitable diagnosis of cancer at this consultation?

A. I admit that that statement may be an overstatement of the situation, that it appears to state that I have made up my mind that the plaintiff had delusional thoughts at that time just simply based on the clinical notes.”

78 Dr. Walsh was further asked:-

“HIS HONOUR: Doctor, while there’s a pause, when you concede there may be an overstatement in that sentence, you were asked about what part of it did you think might be overstated?

A. Particularly where the phrase ‘persistent delusional thoughts’ when on the basis of notes this certainly is markedly inappropriate anxiety in association with depression but no hard evidence of delusional thoughts has been recorded.

Q. I just …

A. I am perhaps assuming that the use of Melleril was for the purpose of treatment of delusions.”

Depression: symptoms and disorders – the evidence of Dr. Phillips

79 Dr. Phillips provided two reports, the first dated 8 August 2005 and the second dated 10 October 2005. He also gave extensive evidence in chief and in cross-examination. He distinguished between a psychosis, on the one hand, and anxiety either with or without depression, on the other.

80 Depression, Dr. Phillips explained, may broadly be referred to as a substantive lowering of mood. It may be subdivided into the following:-

• Adjustment disorder with depressed mood – a common depressive experience low grade and more often than not transient.

• The other extreme is a major depressive disorder notable for its severity and complexity of symptoms. It is severe and potentially life threatening.

• In the middle of these two conditions is dysthymic disorder, a middle intensity, middle grade often chronic depressive experience.

81 Psychotic disorders may be genetically driven disorders of the mind, most commonly, schizophrenia or primary psychotic disorders associated with brain injury. A major depressive disorder may be complicated by psychotic symptomatology, in particular, delusions.

82 With the above categories identified, Dr. Phillips turned to the facts of this case. He distinguished between fears and delusions. A fear that a person believes he has cancer may be productive of very severe anxiety. But anxiety alone is not psychotic. There is no break from reality in the course of an episode of anxiety.

83 Dr. Phillips stated that the fact that the plaintiff had not experienced a reduction in anxiety within two days of commencing on Cipramil was not surprising for there had, by 20 July, been insufficient time for the drug to work. He considered as at 20 July supportive therapy which included reassurance and an explanation to the patient as to the time required for the operation of Cipramil was appropriate. In that situation the use of benzodiazepines would have been entirely appropriate as they are useful in short term treatment. Serapax or Valium would have been amongst the drugs of choice.

84 In terms of the employment of anti-psychotic medication, Dr. Phillips stated that Melleril, being a member of the anti-psychotic group of drugs, should only be used where there is a psychotic process in action. A person with a major depressive disorder, complicated by psychotic symptoms, may be treated by anti-psychotic medication in conjunction with an anti-depressant or perhaps other medications. Dr. Phillips emphasised that the first test is whether there is an indication at all that the patient is in the category of major depressive disorder. The second is why choose an anti-psychotic drug such as Melleril in front of another within the group?

85 The decision in this latter respect, he observed, should go with the modern anti-psychotic medication with their fewer side effects. There has to be a very good reason, he stated, to do otherwise:-

“If in a rare situation one would choose to use an old agent, and I can’t remember the last time I used Melleril or Largactyl, if one chooses to go there, I think, given the well-known side effects, one has to be incredibly cautious …”

86 Turning to the plaintiff’s condition based upon his examination of notes and reports and having assessed the plaintiff (on 6 July 2005), Dr. Phillips stated that, on the material available to him, he was prepared to accept that the plaintiff had exhibited mixed symptoms of anxiety and depression, but, in his opinion, there was no indication of either a primary psychotic illness or that the plaintiff had become psychotic.

87 Dr. Phillips distinguished a phobic condition from a psychotic one:-

“… a person with a phobia has a non-psychotic disturbance but an irrational concern. I accept wholeheartedly he had a significant and specific fear that he was going to die and phobia, but I am not convinced that there is material beyond that that takes us away from our shared reality and into the area of a psychosis. Many a person with a phobia will have a fear of dying … It is a powerful, irrational, over-valued idea, but it is not by definition a delusion.”

88 Dr. Phillips, in his second report, noted the history of the plaintiff’s attendance on Dr. Bailey including his attendance on 20 July 2000 when he became “teary” during the consultation and Dr. Bailey’s reference to “classical depression”, early morning wakening, no appetite (being) teary, “suicidal thoughts but no plans”. Dr. Phillips also referred to the entry in the St. Vincent’s Hospital notes “phobia regarding colon cancer” and the statements (as provided by the plaintiff’s wife), “I am going to die”, “I’ve got cancer” and having been assessed as being “delusional” but without hallucinations. (This latter reference to have been “assessed” as delusional appears not to be strictly correct as the St. Vincent Hospital notes as to “history” merely indicate that the plaintiff’s wife had referred to delusions, not that a medical practitioner had assessed the plaintiff as “delusional”.)

89 Dr. Phillips, in his report of 10 October 2005 (p.3), stated that the plaintiff certainly did not warrant a diagnosis of major depression and added “there is nothing in the available information to suggest that he had become delusional or had developed other psychotic symptoms”.

90 Dr. Phillips proceeded to state that it became critical to draw a distinction between a delusional (psychotic) belief and “an overvalued (non-psychotic) belief”. He stated that a delusion is best defined as an idiosyncratic belief held firmly by a person at a particular point in time, with the belief not supported by known facts and where the belief is not shared by other members of the person’s cultural and/or religious community. It is delusional because it represents a break from reality as it is shared by members of the persons’ community.

91 An overvalued idea, Dr. Phillips stated, is best defined as a strongly held individual view which is highly significant to the person, but with the view not held with the intensity of the delusion or with a view not being associated with other psychotic symptoms. An overvalued idea is not a psychotic symptom.

92 Dr. Phillips, on the material examined by him, considered there was no satisfactory clinical evidence that the plaintiff suffered from any disorder beyond that of a specific phobia (cancer) and a relatively mild adjustment disorder with depressed mood. He stated that he certainly did not suffer from a major depressive disorder with or without mood congruent delusions. Dr. Philips concluded (p.3):-

“Mr. Schultz undoubtedly required treatment at the time for his anxiety based symptoms and probably additionally for a mild adjustment disorder with depressed mood. He did not require treatment for a psychotic disorder however.

… IN the case of Mr. Schultz, criticism of moderate order should be directed at Dr. Bailey for prescribing and continuing to prescribe Melleril for Mr. Schultz in a situation where there is inadequate evidence to conclude that the plaintiff suffered a more intense depressive disorder or that there were accompanying delusional beliefs. It is the apparent misdiagnosis which troubles me, in particular, that his symptoms were those of a specific phobia (cancer) and probably an adjustment disorder with depressed mood. On my evaluation, the plaintiff probably had an overvalued idea that his rectal bleeding was associated with cancer. He did not have a delusional belief, however.”

93 Dr. Phillip’s in oral evidence analysed the nature of a phobic reaction which might be expected in a person diagnosed with cancer. He considered that it would be fair to say that any person in that situation would have thoughts as to the imminence of death and characterised this as “an overvalued idea” whilst emphasising the contextual significance, that is, that the seriousness of the possibility that such overvalued ideas might arise but that does not mean that they represent a break from reality. He considered that the plaintiff had a deep phobia with irrational symptoms but in keeping with the underlying phobia.

94 In cross-examination, Dr. Phillips adhered to his opinion that the combination of support counselling and the prescription of a benzodiazepine agent was the appropriate course of action, a benzodiazepine being short acting and far preferable to any other agent. He re-affirmed that the use of Melleril, as a major tranquilising agent, was not appropriate.

Dr. Bailey’s evidence

95 The defendant stated in evidence that she obtained a degree of Bachelor of Medicine from the University of Newcastle in 1984 and in 1985 carried out her internship at the Royal Newcastle Hospital. In 1987, she was a resident medical officer at the Orange Base Hospital and thereafter spent six months in 1988 in obstetrics and a further six months in paediatrics. In 1988, she obtained a Diploma from the Royal Australasian College of Gynaecology and Obstetrics.

96 In the period 1989 and 1990, she was in general practice in Belmont and between 1990 and 1991 she spent 12 months as a senior medical officer in the United Kingdom. She was awarded a diploma in anaesthesia in 1991.

97 From late 1991 until the present, she has practiced as a general practitioner at Leeton. She is also a resident medical officer at the Leeton District Hospital, Narrandera District Hospital and the West Wyalong District Hospital.

98 In approximately 1999, she was awarded a Fellowship in Rural and Related Medicine. In 1999, she commenced an external course at Monash University in psychiatry but discontinued it due to ill health.

99 Dr. Bailey said that in 2000 she was working in the practice consisting of five partners on a part-time basis seeing approximately 60 patients a week in the rooms. She accepted that, given the number of patients seen by her since the events of 2000 and the lapse of time, she would not remember every word spoken by the plaintiff and she was reliant upon her notes. The first time she was asked to recall events concerning Mr. Schultz’s treatment was following receipt of a letter in about 2003. She stated that she considered it important to include in her notes information that would be relevant to the patient’s ongoing care. She agreed that note taking was important and that clinical notes represented part of the contemporaneous record in relation to observed fact, diagnosis and opinion.

100 The defendant confirmed that the first consultation she had with the plaintiff at the medical centre was on 12 July 2000. There were four doctors in all in the practice at that time. She had not met Mr. Schultz before, but his family were known to Dr. Bailey. She had known Mrs. Schultz as an enrolled nurse at Leeton Hospital and their children went to the same school.

101 Dr. Bailey was asked about her recollection of her consultation with the plaintiff on 12 July 2000. She stated the plaintiff was very concerned about his psychiatric well-being and it was that fact, together with the fact that he subsequently became physically very unwell that made him a “memorable patient”.

102 She recalls the plaintiff advising her as to the following facts:-

(a) That he had noticed bright red bleeding following bowel action.

(b) When questioned, he stated that he did not have a known history of bowel cancer but had a family history of prostate cancer in his father and grandfather.

(c) He had particularly in mind that a cousin had died recently of breast cancer.

“extremely concerned about the possibility that he had cancer”

103 Dr. Bailey said that she proceeded to ask questions about the plaintiff’s symptomatology, whether he had pain with bleeding, whether he had bleeding at any other times than those stated, the extent of bleeding and the colour of the bleeding.

104 The plaintiff was agreeable when asked by the plaintiff to undergo an examination and the plaintiff underwent a proctoscopy following which Dr. Bailey told him that everything he had told her and the results of the examination were extremely reassuring. The examination had revealed a small haemorrhoid.

105 The colour of the bleeding, Dr. Bailey stated, was one of a number of reassuring factors as an indicator that it came from the lower part of the bowel. This, together with the fact that he had no associated pain and that it started when he was constipated, were reassuring facts as were the absence of a relevant family history. Dr. Bailey said that she reassured him that the history of other cancers was not relevant to his risk of having cancer at that point in time.

106 Dr. Bailey said that she concluded by saying that the risk of bleeding being due to cancer was “extremely low”, that it was obviously not zero and that they would need, for completeness, to refer him for a colonoscopy to exclude the possibility of cancer.

107 Dr. Bailey observed, and her notes recorded, that she had had a long consultation with him that day, adding “that was because he found it very difficult to take the reassurance on board that I was giving him” (t.238).

108 Dr. Bailey’s evidence was that, despite her reassurance, the plaintiff persisted in saying that he was worried that he had cancer, that he was worried because his cousin had recently died of cancer and that he too would die of cancer. She said that he “appeared anxious” and was moving his hands restlessly, moving around in the chair. She claimed that he had an anxious expression on his face and repeated that she felt that he was not able to take on board the reassurance that she was giving him that cancer was unlikely.

109 Dr. Bailey said that it was because of this that she decided to make an appointment with Dr. Hayes rather than leaving it for the patient to make the appointment. She made the appointment and gave him a referral letter so that a colonoscopy could be carried out.

Clinical notes concerning consultations of Dr. Horsley and Dr. Bailey

110 The first relevant entry in the progress notes maintained by Dr. Bailey was the entry on 12 July 2000. The notes made on that date include the entry “anxious +++ re possibility of Ca + - long consult”.

111 On 18 July 2000, an entry was made by Dr. Horsley. The entry is brief. The only psychological symptom referred to was anxiety “anx ++”. There was no reference to depression.

112 In relation to Dr. Bailey’s notes of her consultations with the plaintiff, she agreed that she had recorded her observations on 18 July 2000 as to:-

• Objective signs of anxiety.

“anxiety ++”

“anxious ++ re possibility of cancer”

113 On 20 July 2000, the notes in relation to Dr. Bailey’s second consultation contains entries, inter alia, in relation to depression and anxiety. The note reads as follows:-

“Phone contact

Depressed. Anxious +++ Will see later today

Classical depression. Em/w 0 appetite teary. Suicidal thoughts but no plans. Cont. Cipramil. Add Melleril. t-t1 tds 36”

114 In cross-examination, Dr. Bailey said that there was no necessary significance between the three plus signs after the word “anxious” as against two plus signs which could have indicated some slighter reduction on the second of the two occasions, but not necessarily so. She agreed that there was no entry as to depression in the notes of 12 July 2000 nor is there reference to anxiety of delusional intensity nor reference to distorted thinking or an irrational conviction. There is no entry in the notes for either 12 or 20 July 2000 as to psychotic depression as distinct from classical depression. There are no references in the notes for those dates of a delusional belief or to distorted thinking, each of which Dr. Bailey stated in evidence in chief she observed on 20 July 2000.

115 In cross-examination, Dr. Bailey said that her notes appeared to be more comprehensive than three of her partners and that it was important to include in notes information relevant to the patient’s on-going care. She stated that her note taking differed in her own practice from the hospital situation. In the former, she was making a note as aide memoire for herself and as a note to be able to be read by her partners if they were continuing the care of a patient. She contrasted the position in a teaching hospital where others would depend upon the notes and she would make more explicit entires in that situation.

116 Whilst acknowledging the importance of practice notes, Dr. Bailey said that the importance of them depends “on the intended audience”. She clarified that the purpose of writing notes is for a patient’s on-going clinical care and thus needs to provide sufficient information for whoever may be reading the notes to carry on the clinical care of a patient. In other words, those who would use the notes apart from herself would be her general practitioner colleagues. She would not, for example, be writing for the purposes of nursing staff or other health professionals.

117 In relation to the term “classical depression”, Dr. Bailey stated that that was a reference to a major depressive disorder and that symptoms such as early morning wakening, reduced appetite, teary and suicidal thoughts in combination would indicate depression. When asked, during the course of cross-examination, whether classical depression would indicate psychotic depression, she answered “No, well, it could indicate psychotic depression, but no”. She was also asked:-

“Q. All I am trying to ascertain is whether the reference to anxiety with the plus plus or three plusses cross-referenced to classical depression necessarily equals, to another person who might come in to take over, that we are dealing with a delusional depression, or would it not necessarily relate that much?” A. The anxious plus plus and classical depression wouldn’t indicate it necessarily. It could, but not necessarily, indicate a psychotic depression.”

118 She was taken, in particular, to her notes of consultations held on 12 July 2000 and 20 July 2000. In relation to the former, she gave evidence as to the following:-

• Her entry in the notes “anxious +++” regarding the possibility of “CA” indicated an extreme and unusual degree of anxiety.

119 In relation to the consultation on 20 July 2000, Dr. Bailey evidence as to the following:-

• The plaintiff made contact with the practice on 20 July and asked to speak to Dr. Bailey.

• She rang the plaintiff back. He told her that he was “feeling terrible” and felt that he could not cope and would like to see her.

• Dr. Bailey saw the plaintiff later the same day. She stated that he was extremely distressed and was crying during the consultation.

• The plaintiff repeated many times that he was convinced that he had cancer and that he was going to die from it as his cousin had done.

• Dr. Bailey asked a number of specific questions trying to elucidate “what type of psychiatric illness he might have” . She asked him about sleeping, appetite and suicide.

• She reassured the plaintiff the likelihood of cancer was very low and that his cousin’s history of breast cancer did not put him at increased risk of bowel cancer. She also went through the aspects of history and examination which made the possibility of cancer unlikely.

• Notwithstanding the reassurance, the plaintiff continued to be very distressed and that he couldn’t cope and wanted something to relieve his distress.

• In response to questioning, he stated that he woke at four o’clock in the morning (which was typical of depression), and that it was in his mind that he was convinced that he had cancer and was going to die.

• The plaintiff is said to have said that he believed “he was riddled with cancer” .

• At one point in the consultation, he said it was not worth seeing Dr. Steven Hayes for a colonoscopy because he knew he was riddled with cancer and was inevitably going to die from it.

• In response to specific questioning, the plaintiff said he had suicidal thoughts and that, as he was going to die anyway, he might as well do that sooner but then said he would not actually have the courage to carry it out.

120 Dr. Bailey explained that a doctor would be more pro-active in treatment if aware that the patient had suicidal plans and suicidal thoughts. She said the plaintiff had said he had an extremely poor appetite and that this could be a feature of depression or of severe anxiety.

121 She said that she felt very concerned about the plaintiff at the end of the consultation and told him that she would prescribe medication and she gave him her mobile phone number. It was quite uncommon to give out her mobile number to patients. He was told that he could contact her at any time, particularly if he were feeling more suicidal. Dr. Bailey explained that at the time there were no psychiatric crisis teams in Leeton and no psychiatric service after hours. Accordingly, the provision of her phone number was a means of providing some form of 24 hour support. Dr. Bailey said that in her 14 or 15 years of practice she had only given patients her phone number on less than 10 occasions.

122 Dr. Bailey stated that she did not feel there was a need, in view of her diagnosis and decision to prescribe Melleril, to consult with any other medical practitioner. At the time, in terms of mental health services, the position of generalist councillor was vacant and there was only one other mental health worker who would work for the area health service. Such personnel usually have experience in mental health and sometimes formal qualifications in it. The nearest private psychiatrist at the time was located in Albury, some 70 kilometres from Leeton. The normal waiting period to secure an appointment with a private psychiatrist in Albury was between three and 12 months. There was also an on-call psychiatrist for the Greater Murray Area Health Service who was based in Sydney. Dr. Bailey stated that the on-call psychiatrist working in Sydney providing on-call service to the Riverina was sometimes available, but sometimes not. There were no resident psychiatrists closer than Albury.

123 Dr. Bailey said that when the plaintiff telephoned on 20 July, he had told her that he was depressed. When he saw her on that day she wrote a note “classical depression”. She explained that by that she had intended to convey that he had all the features of a classical depressive illness (lowered mood, poor appetite, early morning wakening, inability to enjoy life, lack of motivation).

124 Dr. Bailey prescribed Melleril, one to two 10 milligram tablets three times per day and for Cipramil to be continued. The defendant was asked as to whether she had turned her mind to the possibility of prescribing a benzodiazepine for the plaintiff:-

“I had to make a decision as to whether I felt Mr. Schultz’s symptoms were purely anxiety or whether they incorporated – as part of his depression, he had a degree of distorted thinking; an irrational conviction. My judgment on that day was that he had anxiety of delusional intensity and that that would not be fully addressed by the benzodiazepine.

I was very concerned about the risk of suicide. I felt that he had features of a psychotic depression, and the risk of suicide in psychotic depression is in the order of 10%.

I was obviously aware that Melleril is a medication that has side effects; more side effects than benzodiazepines. However, I felt the risk of low dose Melleril short term was far outweighed by the benefits of treating his distress and his psychotic depression.”

125 Dr. Bailey explained that the prescription of Melleril was made on the basis of the patient’s history as recorded above and took into account:-

(a) The fact that Cipramil would not work for some time and adding Melleril would provide relief to the plaintiff from his distress at an earlier point in time.

“… his distorted thinking, his delusional belief, that he had cancer and for that reason, I felt the more powerful medication was warranted”

126 Dr. Bailey saw the plaintiff again on 22 July 2000. He appeared to Dr. Bailey to still be very distressed, but did say he was feeling somewhat better since starting on Melleril. There was a discussion about increasing the dosage and the prescription was altered to increase the dose to 30 milligrams three times a day (subsequently altered at the end of the consultation to 20 milligrams). On that consultation, Dr. Bailey indicated to the plaintiff that it would be beneficial if she could talk to his wife about diagnosis and treatment. The plaintiff indicated that his wife was in the waiting room and she accordingly was brought into the consultation. According to Dr. Bailey, she told Mrs. Schultz that the diagnosis of depression was quite severe and talked about his overriding obsessional fear that he had cancer. Mrs. Schultz is said to have agreed that he had some improvement since taking the Melleril and according to Dr. Bailey, Mrs. Shultz also told her that she had been concerned about her husband and his mental state and well-being. She advised her that they were planning to go on holidays fairly soon. The doctor’s notes record on that occasion, “ongoing support, discussion with wife who feels he is somewhat better; going away for one week’s holiday”.

127 The notes do not record any diagnosis. Dr. Bailey explained this on the basis that there had been no change in the previous diagnosis made by her.

128 The plaintiff returned to see Dr. Bailey again on 2 August 2000, following the plaintiff’s holiday. Dr. Bailey’s evidence was that the plaintiff said that he had had an enjoyable holiday despite his ongoing anxiety and the anxiety and the fear of cancer was not so overwhelming as to prevent him from enjoying the holiday. He reported to be sleeping well, which was a contrast to the previous position of early morning awakening. He considered he had improved and the Melleril had given him some relief from his distress.

129 In relation to her consultation on 20 July 2000, Dr. Bailey said she listed observed symptoms and noted symptoms recorded in the notes. The notes for 2 August still recorded the plaintiff’s anxiety about cancer, “Still anxious about risk of cancer”. This note reflects concern, anxiety or even fear by the plaintiff over a “risk” of cancer rather than a conviction that he had cancer and a belief that he would die of it or was going to die of cancer. In relation to the note of 20 August 2000, Dr. Bailey was asked:-

“Q. There is no suggestion, either in that note or any note before then, of a perceived certainty of the part of your patient that he had cancer, is there?

A. There’s nothing recorded in the notes to indicate that he was certain, with the exception of the fact that I prescribed Melleril, which was an anti-psychotic, which I knew would indicate to me and my partners that he had anxiety of delusional intensity. To me, those notes clearly say that he had depression with a high degree of anxiety, and then add Melleril, so overall those notes communicate that he had anxiety of delusional intensity.”

130 Dr. Bailey saw the plaintiff again on 23 August 2000. The plaintiff, as earlier mentioned, had no memory of this consultation. She said his mental state had continued to improve. Dr. Bailey requested the plaintiff to return to see her in the first week of September to discuss the outcome of Dr. Hayes’ examination.

131 Although the plaintiff could not recall seeing Dr. Bailey on 23 August, the relevant extract in the records maintained by the practise manager for the defendant’s practise confirmed an appointment at 9.00 am on that day (Exhibit 1). Accounting records (Exhibit 1) confirmed the plaintiff’s attendance on that date.

132 On 23 August 2000, Dr. Bailey was on call as indicated by the second page of Exhibit E denoted by the words “on-call Bailey”. 23 August was a day on which Dr. Bailey started with no booked appointments and she would see patients who rang seeking a consultation either because they were acutely unwell or because their symptoms were sufficiently urgent or required treatment that day. Dr. Bailey said that she would see a patient approximately every 10 to 15 minutes on an ordinary day as the on-call doctor in the practice.

133 The intervening history between the consultation on 23 August 2000 and the plaintiff’s eventual admission to St. Vincent’s Hospital on 24 September 2000 has been set out earlier in this judgment (see paragraphs [31] to [36].

134 When seen on 20 September 2000, the plaintiff entered the medical centre in a wheel chair. Dr. Bailey said that he appeared very unwell and she was shocked to see his condition. Mrs. Schultz advised her that her husband had been unwell for approximately a week with high temperatures, a sore throat and was having difficulty eating. Dr. Bailey conducted a physical examination and made arrangements for him to be admitted to hospital where routine observations were undertaken which confirmed a very high temperature and a somewhat rapid pulse rate. He was admitted to hospital and was provided with intravenous fluids and commenced on intravenous antibiotics. A blood sample was also taken from him.

135 The results of the blood tests indicated that the plaintiff neutrophil count was worryingly low. A light white cell count was a very serious situation and an infective process had commenced.

136 Arrangements were made for him to be transferred to Leeton Hospital and thereafter by ambulance to Wagga Wagga Base Hospital where he was an in-patient between 21 September 2000 and 24 September 2000.

137 Dr. Bailey wrote a referral letter (p.91 of Exhibit E) to the doctor at that hospital. The practice at this time was for relevant records of Leeton District Hospital to be photocopied and sent with the referral letter. That is what occurred in this case.

138 In Dr. Bailey’s referral handwritten letter dated 21 September 2000, she wrote:-

“Thank you for accepting Rex Schulz ate 48. Rex has a history of NIDM (treated with diamixton 80 mgs bd) and a recent episode of depression treated with citalopram and thioridazine. He has recently been ix for pr bleeding and had a normal ba anema 1 week ago”.

139 The letter continued describing the plaintiff’s then recent symptoms.

140 Whilst Dr. Bailey referred to Mr. Schultz’s episode of “depression”, there is no other record confirming her diagnosis of a psychotic episode. Dr. Bailey sought to explain that her referral letter was not intended as a record of every aspect of the plaintiff’s clinical condition.

141 At Leeton Hospital, the plaintiff was commenced on intravenous fluids and antibiotics. The Leeton Hospital “Progress Chart” notes record an entry as follows:-

“45 yr old man

unwell for 7/7 with temps up to 40C, vomiting, diarrhoea and abdo pain (mild)

onset of symptoms coincided with barium enema

no resp symptoms. No urinary symptoms headache

NIDDH (diabetes)

Depression and cancer phobia”

142 The history given does not record any reference to a psychotic state or to psychotic symptoms such as delusions or hallucinations. The entries recorded in the preceding paragraph were made by Dr. Bailey herself in her handwriting.

Deficiencies and omissions in Dr. Bailey’s notes and other records

143 Whilst Dr. Bailey’s note taking was fairly detailed (especially when contrasted, for example, with those of Dr. Horsley), there is no entry confirming her oral evidence to the effect that, as at 20 July 2000, the plaintiff was making statements as to a conviction (as distinct from a risk or fear that he had colon cancer).

144 No sufficient explanation was provided as to why such extreme statements were not noted. On Dr. Bailey’s own evidence, one would expect that any extreme statements of conviction would have been referred to or noted at some stage amongst other recorded observations and symptoms, especially given her practice of making reasonably detailed notes, and particularly in relation to matters of importance or significance. Insofar as Dr. Bailey described her notes as a means of communication with fellow partners, they were inadequate to precisely convey the type of classical depression and associated conditions she had in mind.

145 Dr. Bailey acknowledged that she knew that the plaintiff’s medical history as written up by her in the Leeton Hospital “Progress chart” on 24 September 2000, would become part of the hospital’s records for use and reference by others. She acknowledged that there was no reference made by her in those notes to the fact that the plaintiff had suffered from a psychosis, a delusion or a conviction that he suffered from cancer or what she referred to in evidence as “distorted thinking”, “irrational thinking” or “delusional thinking”.

146 The explanation for such omissions, Dr. Bailey asserted, was that the plaintiff, at the time she entered notes in the hospital records, was by then being treated for a serious physical illness and there was no relevance at that time for reference to be made of the fact that he had been delusional at some point.

147 Whilst this is a partial explanation, I do not consider that this assertion provides an entirely satisfactory explanation for the failure to refer to the more florid or serious psychiatric symptoms which Dr. Bailey claimed had been in evidence and which were the basis for the prescription of the drug which she said she knew carried a risk of agranulocytosis.

148 The notes in the Progress Chart made by Dr. Bailey were quite extensive and were not confined to details concerning the plaintiff’s physical condition or the medical history as to physical illness. Dr. Bailey specifically made the entry previously referred to “depression – cancer phobia”. However, as has been noted, in addressing the medical history in terms of psychiatric illness there was the failure to refer to symptoms said to be consistent with a psychosis and the omission to record a diagnosis of a psychotic condition.

149 Dr. Fisher stated that in evaluating anxiety or depression, a great deal of information was required before a doctor can give a patient “a label” to denote a diagnosed medical condition. In terms of anxiety and depression, he addressed those anxieties which may lead to what might be termed irrational beliefs or convictions, stating (t.139):-

“It would be a brave man to say it was irrational, because the evidence that they have is they are bleeding, and unless you can say ‘it’s not due to cancer’, then it’s not an irrational thought.”

150 Dr. Bailey acknowledged in cross-examination that it was “a very natural thing” for a patient, when rectal bleeding occurs, for their initial fear to be that they might have cancer, such a fear being “a very natural thing”. Most of the patients, however, she stated, following reassurance, did not continue to have their life overhauled by “this obsessive fear of cancer” stating that it was an extremely unusual way to respond.

151 It is to be noted that whilst Dr. Bailey stated that she had in the two consultations on 18 and 20 July sought to reassure the plaintiff, she did not consider him delusional when she saw him on 12 July. It is also apparent from the notes of Dr. Horsley that the plaintiff was not manifesting any psychotic or delusional symptoms when seen by him. The diagnosis against that background that the plaintiff was psychotic, accordingly, only became evident, according to Dr. Bailey, on the one occasion when she prescribed Melleril (22 July 2000). Whilst she re-emphasised in cross-examination that she had not made a record of psychotic symptoms, she insisted that she had given “a full explanation” as to why she had not.

152 Whilst Dr. Bailey acknowledged that one of the purposes of note taking during a consultation was “to record symptoms that seem to you to be significant”. She also stated that if a patient were to give an account of “florid symptoms” such as hearing voices or gave an account of himself which was quite delusional, such comments or symptoms are matters which “you would normally record”. She also stated that it was her practice to record “the more significant symptoms, yes”, conceding that the more relevant symptoms in Mr. Schultz’s case were the ones that she had identified, in particular, the fixed obsession of the nature she had described.

153 Dr. Bailey also proffered a further explanation in relation to her note keeping on 20 July 2000, for the failure by her to record one or more psychotic symptoms and the failure by her to make reference to any diagnosis of a psychotic condition. She said, in effect, it was not necessary to record psychotic symptoms because the very prescription of Melleril was sufficient (t.303):-

“… if she had prescribed Melleril for someone you are saying they have a psychotic depression and they are delusional. It is not necessary for the patient’s on-going care to list it …”

154 This proposition is one which calls for some consideration. The prescription of a drug for a particular condition (whether it be a suspected cardiac condition or other physical condition or a psychiatric illness) cannot in itself be taken as sufficient to infer or imply the existence of a particular symptom or collection of symptoms the existence of which is essential for the making of a diagnosis. Nor can the mere prescription of a drug such as Melleril necessarily carry with it an implied diagnosis. Dr. Bailey’s own practice or custom for on the first consultation on 12 July she did record the actual diagnosis made on that occasion “anxious +++ re possibility of CA” and on 20 July referred expressly to “classical depression” as well as anxiety and adding reference on that occasion to the continuation of Cipramil.

155 I will return to consider the ultimate significance of the omission to record psychotic symptoms in the overall context of the case.

The St. Vincent’s Hospital records

156 The St. Vincent’s Hospital Progress Notes record details of history taken from the plaintiff’s wife. The notes dated 24 September 2000 record:-

“4. Depression Mx GP

Rx Cipramil

Neurovegatative symptoms

motivation

mood

early morning wakening

5. …

6. Phobia re colon ca since Rx

Melleril by GP

‘I’m going to die’

‘I’ve got cancer’

Delusional hallucinations

Meds: Melleril

Cipramil”

157 A further reference appears in the notes:-

“Cousin died depression Rx Cipramil

Paranoid re colon ca Melleril by GP”

158 The ITU Administration Note records under PHM (29 October 2000):-

“concurrent depression after death of cousin lmo commenced citalopram

Paranoia/phobia re colon

Ca – psychotic features

- thioridazine commenced”

159 In the absence of any recorded psychotic symptoms in Dr. Bailey’s practice notes, in her referral letter to the specialist in Wagga Wagga or in the notes which she entered in the records of Leeton Hospital, the defendant (including witnesses, in particular, Dr. Walsh, called in the defendant’s case) sought to support the existence of psychotic symptoms on 20 July 2000 by referring to certain entires made by hospital personnel at St. Vincent’s Hospital made two months or so later (24 and 25 September 2005).

160 The entries on 24 September related to history given not by an assessing medical practitioner, but by the plaintiff’s wife when she provided certain historical material as to the preceding months of her husband’s conditions including statements she attributed to her husband concerning the real concern and fear that he had cancer. Being the only notes as to the plaintiff’s condition (as conveyed by a non-medical lay person – the wife) as at July, the defendant sought to attach considerable weight to the entires. In relation to the abovementioned entries, I note the following:-

• 24 September 2000 – The handwritten notes of 24 September 2000 were written by a haematology resident officer identified as “M. Berry” . The heading to that entry indicates that a history was taken from the plaintiff’s wife.

• The defendant did not call Dr. Berry to establish precisely which entries or parts of entries reflect his interpretation of what he was told, what recorded medical terms or expressions appearing in the notes were his own and what observations and conclusions were his own.

“Phobia re colon ca since Rx (treatment with) Melleril by GP”

“phobia”

(b) There are no medical or clinical facts identified as relating to psychotic delusions or hallucinations.

(c) The statements referred to, “I’m going to die” and “I’ve got cancer” do not in themselves necessarily establish as at any particular date in the past whether such statements represented the concept of an overvalued idea in terms described by Dr. Phillips (non-psychotic) or were indicative, together with any other unidentified symptoms, psychotic symptoms.

(d) The entries “Cousin died depression Rx Cipramil, paranoid re colon ca Melleril by GP” may be a mix of lay terminology used by the plaintiff’s wife and medical interpretation by the registrar. As with the previous entry, there is no material from which the distinction is made between “phobia”, “paranoid”, “depression” or “pre-occupation re fear of cancer”. (The latter entered on 25 September 2005, Exhibit E, p.140, by a registrar who was not called to give evidence.)

(e) The further entry relied upon by the defendant (Exhibit E, p.140-141) concerning pre-occupation with cancer “I was obsessed” was made by the plaintiff whilst in a state of delirium as recorded in the notes.

161 Counsel for the plaintiff endeavoured to establish or suggest that the St. Vincent’s Hospital notes, in particular the history obtained from Mrs. Schultz, should be read in a particular context, namely, in the context of an incident that occurred when the plaintiff was a patient at Wagga Wagga Base Hospital. A statement was attributed to a Dr. Smee at that hospital, “you can’t live without neutrophils” and that Mrs. Schultz’s reference to statements by the plaintiff such as those set out in Note 6 in [156] above should be seen as responding to Dr. Smee’s statement.

• That the defendant realised that the prescription of Melleril involved a risk of injury to the plaintiff.

• That the magnitude of the risk was considerable even if the probability of its occurrence was low.

204 In relation to the submission that Dr. Bailey failed to institute blood tests or otherwise monitor the effects of Melleril upon the plaintiff, there was limited evidence adduced on that issue. Dr. Phillips, towards the end of his second report (10 October 2005 at p.5) stated that Dr. Bailey would have been wise “to have monitored the plaintiff’s blood picture whilst the patient continued to take that agent”. He addressed the question in evidence (t.203-204). He was asked as to how often a check or testing should be conducted and he stated:-

“In my view, it should be done at the beginning of therapy after a month and if that is normal, it would be wise to repeat the blood line test at six months. MIMS, the huge book we work from, suggests that the blood picture should be monitored regularly. I think that is their word. It comes back clearly to clinical good sense.”

205 The question of blood monitoring was not addressed by Dr. Fisher in this reports of 24 January 2000 and 10 November 2000 nor in evidence in chief. Accordingly, the focus of the plaintiff’s case was upon the issue of diagnosis and the defendant’s decision to prescribe Melleril rather than upon issues associated with patient management between 20 July 2000 and his admission to Leeton Hospital on 20 September 2000. There was no evidence that blood monitoring would have averted the risk or altered the plaintiff’s treating doctors.

206 The evidence reveals that Dr. Bailey gave prompt and quite thorough attention to the plaintiff on two occasions in July 2000. She spent a considerable amount of time with him on 18 and 20 July. She was plainly concerned enough about his condition to take what was, for her, the unusual step of providing Mr. Schultz with her mobile phone number with instructions to ring her if he felt that was necessary. This in itself reflects the fact that Dr. Bailey had assessed the plaintiff on 20 July as highly anxious by reason of what had become an overpowering concern, phobia or conviction that he had cancer and his life was under real threat.

207 In forming an assessment of the plaintiff, it was appropriate for the defendant to bring into account that she had tried to impart information to him as a result of her physical examination (the presence of a haemorrhoid and the red colour of the blood) which were favourable objective signs but that it appeared to have no impact upon the plaintiff’s level of concern and anxiety. The very fact that the reassurances she offered were not having any effect upon him was itself a relevant matter for her to bring into the assessment she was called upon to make. I accept her evidence that this was a matter that she had regard to in assessing Mr. Schultz on 20 July 2000.

208 A decision by Dr. Bailey to prescribe Melleril on the basis of her assessment of the plaintiff over the period up to 20 July 2000 in the context of all the matters bearing upon the plaintiff’s condition I consider on the evidence was well within the range of legitimate clinical judgment. Whether the decision would necessarily have been considered by a specialist psychiatrist to have been “correct” is not the appropriate test. It is whether a general practitioner, in the actual circumstances presenting to Dr. Bailey on 20 July 2000, could reasonably have considered that Mr. Schultz’s presentation was consistent with or indicative of distorted thinking of a psychotic nature. Applying that test, I am of the opinion that it was open to Dr. Bailey to make a judgment to that effect and that the prescription of Melleril was, accordingly, an appropriate course of treatment.

209 In light of the finding made and expressed above, the defendant was not in breach of her duty of care to the plaintiff. Accordingly, judgment is to be entered in favour of the defendant.

210 In light of that conclusion, the issues of causation and damages strictly do not need to be the subject of determination. However, as those issues were canvassed in some detail in evidence and in the written submissions and given the possibility that the plaintiff may wish to consider appeal proceedings, it is desirable that I express my conclusions on those issues.

Causation

211 Dr. Peter Presgrave, locum stage specialist in Haematology, St. Vincent’s Clinic, in his report of 11 January 2001, confirmed that the plaintiff had a fairly straightforward drug induced agranulocytosis, probably related to his Melleril intake. The course of admission was further complicated by profound anaemia, with fluctuating neutrophil and platelet counts. His steroid therapy was complicated by bowel perforation and purulent bacterial peritonitis which required laparotomy and was subsequently complicated by an acute myocardial infarction.

212 Dr. Gerard E. Carroll similarly confirmed his report of 9 January 2001 that the plaintiff’s condition was probably due to Melleril pancytopenia.

213 In his report of 20 February 2001, he qualified his opinion stated that his haemoglobin reading was highly suggestive of persistent marrow dysplasia or hypoplasia and that “perhaps the Melleril had supra-added suppressive effect to a pre-existing marrow hypoplasic syndrome”.

214 Mr. G.E. Carroll, consultant physician and consultant cardiologist saw the plaintiff on referred from Dr. Bailey in Wagga following the plaintiff’s stay at St. Vincent’s Hospital. He stated that his overall impression, on the question of causation:-

“It was hard to escape the fact that the patient had developed this acute – what seemed to be an acute pancytopenia straight after the Melleril and that’s a likely, a probable contributing or causative thing. But the fact that it had persisted so long concerned me and made me think there may have been an alternative or another contributing factor.”

215 Dr. Carroll, however, said that this latter question was a matter upon which he would defer to the opinion of a haematologist. In expressing his opinion on causation, he relied upon the fact that Melleril was known to be associated with incidents of pancytopenia and as well the temporal connection between the plaintiff’s taking of Melleril and the onset of the symptoms.

216 Dr. S. Milliken, senior staff specialist in haematology, St. Vincent’s Clinic, stated that the plaintiff had made a remarkable recovery from “his very stormy course at St. Vincent’s Hospital” (report 12 January 2001). Dr. Milliken recorded the fact that it was considered that his pancytopenia was probably due to Melleril but at one stage queried the possibility of autoimmune aplasia. In his report of 16 March 2001, Dr. Milliken stated that he suspected that he had a marrow stem cell defect, presumably due to the Melleril. In his report of 7 September 2001, Dr. Milliken recorded his advice to the plaintiff that it would be safe for him to have a repair of his colostomy unless the platelet count was over 100. He stated that there was no simple way to achieve this other than with platelet transfusion which was not acceptable to the plaintiff (presumably by reason of the fact that he is a Seven Day Adventist).

217 In oral evidence Dr. Milliken stated that if there had been an autoimmune aplasia, he considered that it was likely that that was caused by the ingestion of Melleril. He stated this upon the basis that Melleril had been reported to have caused permanent stem cell damage to the bone marrow which would cause a more permanent blood cell defect. He stated that the plaintiff’s blood count had slowly continued to improve which would make it more likely to think that the Melleril was a fault rather than some other condition. In particular, that fact would exclude a pre-existing condition.

218 Finally, Dr. Milliken stated that knowing the plaintiff’s religious conditions, his surgical history and his haemological condition, he considered it reasonable for the plaintiff to elect not to undergo surgery for the removal of the colostomy. He added that the risk of surgery would be depend on a large number of factors. One such factor was that those who had operated on the plaintiff had commented on quite a lot of scar tissue in his lower bowel as a result of the infection and there wasn’t a lot of free bowel left following the colostomy. Dr. Milliken stated that it would be a very difficult surgical procedure to repair his colostomy. There was still quite a risk of bleeding, possibly bowel perforation and unsuccessful reconnection of the bowel.

219 In cross-examination, Dr. Milliken confirmed that all elements of the pancytopenia were caused by Melleril even though that was an unusual situation.

220 Dr. Milliken stated that apart from the temporal connection, the very gradual or slow improvement in his blood count over the years was supportive of a causal connection. He stated that if there had been any other condition, one wouldn’t have expected his blood count to gradually improve over the period of time in question. The late onset or appearance of thrombocytopenia (a reduction in the platelets or thrombocytes) which reduced platelet count was not obviously indicative of some other cause in respect of that condition. He stated that while that was considered, he felt that the most likely explanation was that it was all due to damage to his bone marrow stem cells leading to all three blood elements falling leading in turn to pancytopenia and, for some reason, it had happened in a sequential “rather than all-in-one sort of fashion”.

221 Dr. S. Milliken in his report of 16 March 2001 stated that he suspected the plaintiff had a marrow stem cell defect “presumably due to the Melleril”.

222 I am satisfied to the requisite standard that the medical injuries and disabilities for which the plaintiff received treatment at St. Vincent’s Hospital were causally related to the ingestion of Melleril as prescribed by the defendant. In that respect, I find in particular that the condition of agranulocytosis was induced by the ingestion of Melleril which was associated with profound anaemia causing dysplastic changes and that steroid therapy administered for such conditions gave rise to complications leading to bowel perforation and purulent bacterial peritonitis requiring laparotomy and that such treatment was subsequently complicated by and gave rise to an acute myocardial infarction.

Assessment of damages

223 The plaintiff’s claim for damages fell under a number of headings as follows:-

(a) Non-economic loss (Civil Liability Act 2000, s.16).

(b) Past medical and hospital expenses.

(c) Future hospital, medical and allied expenses.

(d) Additional cost of colostomy bags.

(e) Cost of cognitive behavioural therapy.

(f) Past economic loss.

(g) Interest on past economic loss.

(h) Future loss of earning capacity.

224 On the basis of the plaintiff’s date of birth (17 September 1952), his life expectancy has been calculated as a further 27.7 years.

225 The assessment of the heads of claim are as follows.

(a) Non-economic loss

226 The court is required to access damages in accordance with the provisions of s.16 of the Civil Liability Act 2000 (NSW). The maximum amount payable to a plaintiff for this head of damage under that provision is the sum of $416,000. The assessment is required to be done in accordance with a comparison based upon “a most extreme case”. It has been held that the term “most” means “very”: Dell v. Dalton (1991) 23 NSWLR 528.

227 In relation to the extent of the disabilities suffered by the plaintiff, Dr. Milliken in his report of 1 May 2003 said that the plaintiff had undergone a lengthy hospital admission with complications of delirium, bowel perforation thought secondary to infection which required resection of the terminal ileum, anastomosis of ileum to the colon and creation of the colostomy.

228 The disabilities included a progressive anaemia whilst in hospital with haemoglobin falling to 33. This was complicated by an acute myocardial infarction. By reason of the plaintiff’s direction not to give any blood products on the basis of him being a Jehovah Witness, he was not given blood product support.

229 Dr. Milliken in his report of 1 May 2003, stated that his admission was also complicated by acute renal failure probably secondary to his septicaemia and that it was highly likely that Mr. Schultz suffered a good deal of pain and discomfort as a result of his illness. He added that it was likely that his wish not to have blood products also contributed significantly to his discomfort.

230 The plaintiff had been left with an incisional hernia following his abdominal surgery and still had a functioning colostomy.

231 In terms of ongoing disability, Dr. Milliken considered that his major problems appeared to be his psychiatric problems which had preceded the onset of his severe illness but it did not appear that those problems were any worse than they were prior to the illness. His ongoing problems with a need for his colostomy and his incisional hernia. Whilst there interfered with the quality of his life, he was unsure as to whether they were causing any major disability. He considered that his aplastic anaemia in terms of prognosis was good.

232 It is clear that the plaintiff suffered extreme medical injuries and disabilities and pain arising from the most unfortunate illness which occurred as a side effect of the administration of Melleril. The evidence indicates that the plaintiff suffered greatly from the condition of pancytopenia, bowel sepsis, and the consequential disabilities and medical events to which I have referred. The plaintiff, in other words, was subjected to multiple illnesses of different kinds, each of which were extremely serious, including a left ventricular function post-infarct and bowel surgery resulting in the plaintiff having abdominal surgery and procedures to establish his colostomy.

233 It is clear that the plaintiff was not only placed in an extremely life threatening position for a considerable period of time and required hospitalisation at St. Vincent’s Hospital for approximately two months, but that in that period and subsequent thereto, he suffered a great deal of pain and discomfort as a result of the multiple illnesses and conditions.

234 The plaintiff, by reason of his religious beliefs, is unwilling to submit to further surgery and the medical evidence, and in any event, the evidence indicates that removal of the colostomy would involve significant risk to the plaintiff. I consider that his decision not to have the colostomy removed to be a reasonable one and, accordingly, his quality of life has been diminished to the extent that that condition remains a permanent one.

235 I was impressed with the plaintiff as a person who has exhibited immense stoicism in his recovery from what was, as I have stated, an extremely life threatening position.

236 The plaintiff was not in remunerative employment in 2000 as he had originally suffered a back injury whilst working as a contract labourer in 1974. His wife undertook employment as an enrolled nurse and Mr. Schultz has attended to the rearing of the children including having the care of the son Brett who, as earlier stated, suffers from blindness. The plaintiff and his wife have, in all, four children.

237 I have had regard to both the physical and psychological matters that have been the subject of evidence. The specific matters have been detailed in the written submissions on behalf of the plaintiff (at 10.13) which I reproduce below as follows:-

• periodic leaking from the colostomy bag;

• the stoma weeks at most times;

• He suffers from secondary large hernia and incisional hernia, best seen in the photographs contained in the plaintiff’s tender bundle;

• the hernia;

• he is unable to bend due to post-operative hernia;

• he has to be extremely careful as to what he eats because of the rapid transit time of his bowel;

• he is largely housebound because of his tendency to have accidents with his colostomy;

• he is fearful of losing control over his bowel;

• he is troubled by the releases of large amount of flatus and from time to time he has to open the bag for purposes of decompression;

• he is concerned/anxious about his diet, again noting his rapid bowel transit time;

• he has a much-restricted social life because of the abovementioned problems. He thinks he is losing friends as a consequence of his restricted lifestyle – “I don’t have a social life any more” ;

• he tends additionally to push people away, including his children. He noted that one of his children has come into substantial conflict with him;

• he becomes anxious when the toilet at home is occupied. In relation to this he notes that the house is equipped with one toilet only.

• He is unable to go to bed until ate evening in order to achieve best control over his colostomy. He wakes during the night and feels he must sit up as a consequence of gastric discomfort;

238 The plaintiff’s evidence was that his improvement plateaued some 12 months prior to the hearing. He is required to remove the colostomy bag every four days and he continues to take medication, including Effexor.

239 I am of the opinion, having regard to the comparative assessment that I am required to make in terms of s.16 of the Civil Liability Act 2000 that the plaintiff should be assessed as at 45% of a most extreme case, such assessment resulting in a quantified amount of $166,400.

(b) Past medical and hospital expenses

240 Such expenses were agreed between the parties at $3,370.45.

(c) Future hospital, medical and allied expenses

241 The parties were agreed that an amount of $2.50 per week for antidepressant medication should be allowed for, providing a total sum of $1,991.50.

(d) Additional cost of colostomy bags

242 There is an additional claim for extra colostomy bags beyond that which are provided to the plaintiff under the relevant scheme. A claim of $5,000 in respect of that item was claimed. I am of the opinion that the sum of $3,000 should be assessed in respect of that matter.

(e) Cost of cognitive behavioural therapy

243 In respect of cognitive behavioural therapy, Dr. Phillips gave evidence that the plaintiff requires 10 to 15 sessions of counselling followed by a second monthly consultation for one year and then four monthly follow ups in the year thereafter.

244 In this respect, the plaintiff’s claim for $2,500 for such therapy is, in my opinion, a reasonable amount.

(f) Past economic loss

245 The plaintiff’s claim was based upon the proposition that he had intended to re-enter the workforce in February 2000 with his wife to undertake a mail delivery contract with Australia Post. He applied but was unsuccessful for that tender. He was told that he should re-apply in November 2000. The medical events associated with these proceedings, of course, intervened to prevent that from happening.

246 The profit margin calculated by the plaintiff in his tender document was $15,028 gross per annum (approximately $292 gross per week). It is clear that from the medical evidence the plaintiff would not be able to carry out the duties of a mail contractor, having regard to the need to change his colostomy bag.

247 The plaintiff sought to claim damages for a period of two years at approximately $250 net per week until the date of trial and beyond.

248 Having regard to the fact that the plaintiff was out of the workforce for very many years prior to 2000 and given that his tender was unsuccessful for Australia Post, this claim can only, in my opinion, be valued upon the loss of opportunity or the loss of a chance that he would have succeeded in generating earnings for a period of two years or so.

249 In light of all of the uncertainties, I do not consider that the past economic loss claimed (in the schedule of damages at $250 per week for 4.5 years totalling $58,500) is sustainable. The assessment should be upon the basis of a loss of a chance of less than 50%. In that respect, I value this head of claim at $15,000.

(g) Interest on past economic loss

250 Interest calculated on $15,000 at 5.5% for four years gives a calculation of $3,300 as the assessed allowance for interest on past economic loss.

(h) Future loss of earning capacity

251 The plaintiff’s counsel submitted that the court should find there was a very good chance that the plaintiff would have carried out the mail delivery contract work and that the plaintiff would have earned in the vicinity of $250 per week until the age of 65 and that such an approach should then be adjusted to reflect the probabilities. It was fairly conceded that a deduction of some 50% of the award for this heading would not be inappropriate. The plaintiff’s counsel submitted that the appropriate award for this head of damage was in the order of $50,000 to $60,000.

252 I have regard to the fact that the plaintiff’s family commitments were reducing as his children left home and that he was primarily the carer of his son, Brett, but that that provided him with an opportunity for re-entering the workforce. I have regard to the fact that he had actually made application for the mail delivery contract work which evidenced an intention to endeavour to obtain work.

253 I accept the plaintiff as genuine in his evidence relating to this future intentions to endeavour to operate in the workforce once again by obtaining contract work of the kind identified in evidence and that the court should assess this head of claim on a general basis (or on the basis of what has been termed as a “buffer” for loss of future earning capacity – plaintiff’s written submission, paragraph 14.4).

254 I am of the opinion that an appropriate assessment of this aspect of the claim is the sum of $30,000.

(i) Damages for gratuitous past attendant care services

255 The evidence plainly indicates that the plaintiff was unable to care for himself for the entire two month period of his hospitalisation and following discharge he required 24 hour per day nursing care. The plaintiff’s wife remained in Sydney and cared for the plaintiff following his discharge from St. Vincent’s Hospital on 22 November 2000. Mr. and Mrs. Schultz and his sister remained at home to care for him with his wife returning to work just prior to Christmas 2000.

256 As at that time, the plaintiff was unable to stand up and was washed by his wife whilst sitting in a chair. The plaintiff was not able to attend to any cleaning or parenting duties during that period. The evidence was that he was not able to look after himself by the time his wife returned to work. It is plain that Mrs. Schultz is a hardworking wife who has worked hard pursuing her nursing career in order to support the family and returned to work, notwithstanding that her husband did have continuing need for her services in the home.

257 I record, lest it not be otherwise evident, that I regarded both Mr. and Mrs. Schultz as honest, hardworking family people who have devoted their lives to supporting their family members including, in particular, their blind son. I have no hesitation whatsoever in accepting the evidence as to the level of care provided by Mrs. Schultz for the plaintiff and by his sister in continuing to undertake activities associated with bathing, preparing meals and cleaning. I accept Mrs. Schultz’s evidence that the plaintiff’s sister remained with her family until approximately the end of January 2001 and rendered gratuitous attendant care services for the plaintiff.

258 The claim under this heading is made at the agreed rate of $17 per hour. The claim has been calculated as follows:-

• September – November 2000 – care provided by wife at 16 hours per day (112 per week) for eight weeks ($15,680).

• December – January 2001 – care provided by wife and the plaintiff’s sister at 16 hours per day (112 per week) for eight weeks ($15,680).

• February – June 2001 - care provided by wife at 21 hours per week for 22 weeks ($8,085).

259 Allowance is to be made for the fact that the plaintiff, by reason of prior disability, was not a fully able person. However, notwithstanding the claim as made for gratuitous past attendant services should, in my opinion, be essentially accepted. On that basis, I consider that an allowance of $30,000 represents a proper assessment.

260 I accordingly assess the heads of claim in the proceedings as follows:-

(a) Non-economic loss (Civil Liability Act 2000, s.16) $166,400.00

(b) Past medical and hospital expenses $3,370.45

(c) Future hospital, medical and allied expenses $1,991.50

(d) Additional cost of colostomy bags $3,000.00

(e) Cost of cognitive behavioural therapy $2,500.00

(f) Past economic loss $15,000.00

(g) Interest on past economic loss $3,300.00

(h) Future loss of earning capacity $30,000.00

261 Upon the basis of findings earlier made and set out earlier in this judgment, there should be judgment for the defendant.

262 The proceedings may be re-listed, if required, for any consequential orders.

**********

CITATION:	SCHULTZ v. BAILEY [2006] NSWSC 727
HEARING DATE(S):	6, 7, 8, 9, 10, 13, 14 February 2006
JUDGMENT DATE :	20 July 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Judgment for the defendant. The proceedings may be re-listed for any consequential orders, if required.
CATCHWORDS:	Negligence – medical negligence – patient repeatedly expressed anxiety about family history of cancer and the possibility that he had symptoms indicative of bowel cancer – general practitioner made arrangements with specialists for tests in relation to the symptoms – patient’s anxiety escalated – general practitioner diagnosed patient’s delusion beliefs as “psychotic” – general practitioner prescribed an anti-psychotic drug – patient suffered catastrophic but rare side-effects from the anti-psychotic drug – patient was hospitalised and underwent significant treatment for the side effects – whether the general practitioner was negligent in diagnosing psychosis
LEGISLATION CITED:	Civil Liability Act 2000
CASES CITED:	Dell v. Dalton (1991) 23 NSWLR 528
PARTIES:	SCHULTZ, Rex John v. BAILEY, Dr. Belinda
FILE NUMBER(S):	SC No. 20159 of 2003
COUNSEL:	Plaintiff: J. Anderson Defendant: S. Kalfas, SC.
SOLICITORS:	Plaintiff: Farrell Lusher Defendant: P. Tsaousidis