Symons v Dodds

[2009] NSWDC 333

CITATION:	Symons v Dodds [2009] NSWDC 333
HEARING DATE(S):	30-31 March 2009, 1-3 April 2009, 18-22 May 2009
JUDGMENT DATE:	10 December 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict for the defendants. 2 The plaintiff is to pay the defendants costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument if required. 3 The exhibits will be retained for 28 days. 4 My reasons are published. 5 The matter is listed for a costs argument on 14 December 2009 at 10:00am
CATCHWORDS:	Medical Negligence - Whether negligent misdiagnosis - Whether treatment unnecessary - Nature and extent of injury - Credit - Assessment of damages
PARTIES:	Carolyn Symons (Plaintiff) Dr Anthony Dodds (First Defendant) South Eastern Sydney and Illawarra Area Health Service (Second Defendant)
FILE NUMBER(S):	227/07
COUNSEL:	D H Hirsch (For the Plaintiff) G Gregg (For the First and Second Defendants)
SOLICITORS:	Emery Partners (For the Plaintiff) General Insurance Law Department (For the First and Second Defendant)

JUDGMENT

1 Cary Symons was treated with chemotherapy by the first defendant, Dr Anthony Dodds, a specialist haematologist. He then referred the plaintiff for radiotherapy. The chemotherapy prescribed by the first defendant was administered by nursing staff of St Vincent’s Hospital, the second defendant. The plaintiff claimed that both defendants were negligent in the treatment they provided. She claimed that the first defendant misdiagnosed her condition as a result of which she received chemotherapy and radiotherapy that was unnecessary. She claimed that the first defendant and the second defendant’s nursing staff failed to inform her of the steps to be taken to prevent or minimise the side effects of the type of chemotherapy prescribed. She claimed that as a consequence of their negligence she suffered serious and debilitating physical and psychological consequences.

ISSUES

2 Determination of the plaintiff’s claim that the defendants were in breach of their duty of care required findings in relation to the following issues:

1 Whether the first defendant misdiagnosed the plaintiff’s condition through negligence in failing to undertake appropriate diagnostic procedures.

2 Whether the plaintiff was inadequately advised of the need for hydration at the time of administration of the CHOP chemotherapy.

3 Determination of the plaintiff’s claim that she suffered damage and loss as a result of the treatment provided by the defendants required findings in relation to the following issues:

1 The nature of the physical and psychological injuries suffered.

2 The extent to which those injuries have caused and continue to cause the plaintiff pain and disability.

3 The extent to which the plaintiff required and continues to require attendant and domestic care as a consequence of those injuries.

The circumstances leading to the treatment

4 The plaintiff was diagnosed with Chronic Lymphocytic Leukaemia (CLL) in 2002. The diagnosis was made by Dr Lindeman, a consultant haematologist at the Prince of Wales Hospital.

5 It was agreed by all experts that CLL is a disease that initially takes an indolent course and it is not in itself life threatening. The principal health risk posed by CLL is the susceptibility to infection because the effect of the disease is to compromise the patient’s immune system. Dr Vaughan, whose evidence on this aspect was supported by other experts and medical literature, stated that the major morbidity and mortality of CLL early in its course was related to infection.

6 CLL also increases the potential that the patient will suffer secondary tumours.

7 Initially treatment is not required and a watch and wait approach is taken under which patients are regularly checked and reviewed.

8 CLL may progress to a more active form requiring treatment. The worst case scenario occurs when the disease transforms by a process known as a Richter’s transformation. The disease then transforms into an aggressive form of Non-Hodgkin’s Lymphoma. This occurs rarely. It is also rare that a patient whose disease undergoes this transformation survives for longer than 12 months. Little is known about the process by which this transformation occurs.

9 CLL is also known as Small Cell Lymphoma. This is because the lymphoid cells appearing when the disease is present are small. The principal means of diagnosing a Richter’s transformation is the finding that the cells have transformed into large cells.

10 Having been diagnosed as suffering from CLL in 2002 the plaintiff was regularly reviewed by Dr Lindeman. In early 2004 she complained of drenching night sweats, fever and weight loss. In March 2004, concerned that infection might be present, the plaintiff’s general practitioner, Dr Ktenas, advised her to attend at the Prince of Wales Hospital where she was treated with antibiotics.

11 The plaintiff consulted Dr Lindeman. He ordered a CT scan that reportedⁱ on 25 March 2004:

Left para-aortic abnormal lymphadenopathy is seen inferior from the renal veins and there is also marked lymphadenopathy mass in the left iliac region and pelvis side wall down to the level of the pubic ramus that displaces interstinal loops. I suspect also left inguinal lymphadenopathy.

12 Fine needle aspiration and CT guided biopsy investigations were inconclusive on the question of whether large cells were present.

13 On 2 April 2004 Dr Lindeman, concerned that the plaintiff had undergone a Richter’s transformation, requested an excision or incision biopsy of the plaintiff’s left iliac node from Dr Truskett.

14 On 8 April 2004 Dr Lindeman wroteⁱⁱ to Dr Ktenas advising him of the outcome of his investigations. He reported that larger cells were located but they could not be analysed because they were necrotic. A Richter’s transformation was at the top of his list of diagnostic possibilities. Infection was not indicated in the results of investigations undertaken to that date.

15 On 9 April 2004 Dr Truskett wrote to Dr Lindeman that as discussedⁱⁱⁱ he believed he could obtain a representative sample from the plaintiff’s left groin and thereby avoid violating her peritoneal cavity. The pathology report^iv on the material excised by Dr Truskett on 20 April 2004 was inconclusive.

16 It was agreed by all medical witnesses that this biopsy was undertaken in the wrong area and therefore did not assist in determining whether the mass shown on the CT scan was infective or a tumour. It was taken from the lymph node and not the mass itself.

17 Having reviewed the pathology reports following the biopsy, Dr Lindeman reported^v to Dr Ktenas on 3 May 2004 that in the absence of evidence of a Richter’s transformation, he proposed to treat the plaintiff for the progression of her CLL. He plan was to treat the plaintiff with the drug chlorambucil for seven days and, if that was ineffective, with chemotherapy with a combination of drugs, one of which was cyclophosphamide.

18 Chlorambucil provided only temporary relief of the plaintiff’s symptoms. As a consequence she attended at the Prince of Wales Hospital on 10 May 2004 for chemotherapy. The hospital notes concerning this admission were very limited.

The diagnosis and treatment

19 The plaintiff, accompanied by her daughter, Lani Symons-Vaughan, consulted the first defendant on 19 May 2004 through a referral provided by her brother, Dr Brian Symons, a paediatrician.

20 The first defendant did not at that stage have the medical records of Dr Lindeman or the Prince of Wales Hospital. There was a conflict between the plaintiff and Ms Symons-Vaughan and the first defendant about the discussion that took place at this consultation.

21 The first defendant reported^vi to Dr Symons on 22 May 2004. He noted the plaintiff’s history and that the biopsy revealed only necrotic cells. He stated that there was a strong suspicion of a Richter’s transformation and supported Dr Lindeman’s suggestion that the plaintiff receive more aggressive treatment.

22 In early June 2004 the plaintiff developed a deep vein thrombosis in her left leg. She was treated with Warfarin.

23 On 29 June 2004 the plaintiff further consulted the first defendant on a treating basis. At this consultation the first defendant was in possession of the medical records of Dr Lindeman and of the Prince of Wales Hospital. There was again a conflict between the plaintiff, Ms Symons-Vaughan and the first defendant about the nature of the investigative procedures that were discussed. The first defendant directed that blood tests and a CT scan be performed.

24 The blood test results^vii isolated the organism staphylococcus aureus in one of two bottles.

25 The findings on the CT scan were reported^viii as follows:

There is hydronephrosis of the left kidney associated with a dilated ureter which can be visualised down to mid sacral level where it is lost in a large left pelvic heterogenous soft tissue mass containing areas of diminished attenuation, some foci of gas and is compatible with necrotic lymphadenopathy. There is also thickening and abnormality of the left iliacus muscle and an apparently encapsulated mass measuring about 4 cm size in the upper left inguinal region also compatible with lymphadenopathy.
…
Comparison is made with the previous examination of 25/3/04, the left sided pelvic lymphadenopathy has increased moderately in size and is now encasing the distal left ureter and causing obstruction to the left upper tract. The left inguinal adenopathy has increased in size and has become necrotic and the lymphadenopathy at the aortic region in the mid and lower abdomen have diminished slightly. I am unsure as to the significance of the gas bubbles within this left adenopathy mass ? bowel movement ? infection.

26 After receiving these results the first defendant telephoned the plaintiff and told her to attend at St Vincent’s Hospital forthwith. She was admitted on 2 July 2004 with the presenting problems noted^ix as NHL/Staph septicaemia. On examination she was noted to be afebrile and not too unwell. The plan^x included urology review for management of hydronephrosis and general surgical review for drainage or intervention if collection suspected. The registrars’ notes recorded a full history, including references to staph aureus infection and the absence of any finding of large cells. Both registrars questioned the presence of infection in necrotic lymphadenopathy and both noted that the plaintiff was afrebrile. Both referred to surgical and urological review and opinion. Dr Beaumont questioned whether the fevers were due to tumours or staph aureus sepsis.

27 The plaintiff was treated between 2 July and 4 July 2004 with CHOP chemotherapy and intravenous antibiotics. On 4 July 2004 it was noted that the plaintiff was afebrile and that she wished to go home. The first defendant was contacted and agreed to her discharge. The discharge letter of St Vincent’s Hospital stated^xi:

…seen by urology re hydronephrosis. If chemo will be able to shrink lymph nodes no need for ureteric stent.

If pt unwell, septic will require urgent stenting.

28 The notes indicated that prior to discharge the plaintiff was advised that if she became unwell, if her temperature increased or she experienced lethargy or difficulty passing urine, she was to return to the hospital.

29 On 6 July 2004 the first defendant once more reported^xii to Dr Symons that the plaintiff’s fevers and drenching night sweats, having receded following the administration of chlorambucil, had returned with a cough and loss of appetite. He noted the left vein thrombosis and a general deterioration in the plaintiff’s condition. He reported the findings of the CT scan, with the development of left hydronephrosis and the finding of staph aureus through the blood cultures.

30 A renal ultrasound performed on 21 July 2004 reported a continuing moderate left hydronephrosis suggesting that the first CHOP cycle had not relieved the obstruction.

31 On 27 July 2004 the second CHOP cycle was administered to the plaintiff as an outpatient.

32 Between 28 July and 17 August 2004 the plaintiff developed urinary symptoms of cystitis. The first clinical record of these symptoms appeared in the notes^xiii made at the time of administration of the third CHOP cycle. The notes recorded that the first defendant reviewed the plaintiff in relation to these symptoms and provided a prescription for antibiotics.

33 On 23 August 2004 the plaintiff was admitted to St Vincent’s Hospital suffering from haemorrhagic cystitis. The plaintiff left the hospital on 26 August 2004 against the advice of the first defendant.

34 A CT scan taken on 23 August 2004 reported^xiv that the mass was smaller than in June 2004 but was still partly obstructing the left ureter. The large left inguinal mass was unchanged in size at 4 cm in diameter.

35 Blood cultures undertaken between 2 July 2004 and 26 August 2004 reported no further finding of staph aureus.

36 Fine needle aspiration under CT guidance was performed on 26 August 2004. Three passes were made with aspiration of scanty material^xv. It reported^xvi finding 4+ bacteroides fragilis group but otherwise insufficient material for diagnostic purposes^xvii.

37 On 2 September 2004 the first defendant wrote^xviii to Dr Ktenas concerning the development of haemorrhagic cystitis that he attributed to the cyclophosphamide component of the CHOP therapy. He reported:

The fine needle aspiration revealed no lymphoid cells and no polymorphs but it has grown 4+ Bacteroides Fragilis . I am uncertain whether this represents a true infection or a contaminant but in view of the doubt I have commenced her on a course of Flagyl 400 mg tds.

38 A further CT scan taken on 22 October 2004 indicated^xix some reduction in the size of the left inguinal mass.

39 On 2 November 2004 the first defendant reported^xx that the plaintiff’s symptoms of fever and sweats were reduced, there was stability or reduction in the inguinal masses and the pathology tests were reasonably good with virtually normal biochemistry. After discussion with the plaintiff, the decision was made to place her under observation for one month while she pursued an opinion from Dr Holt in Western Australia.

40 On 30 November 2004 the first defendant wrote^xxi to Dr Duval, Director of Radiation Oncology, seeking an opinion concerning palliative radiotherapy. Dr Duval agreed that radiotherapy would be appropriate.

41 Dr Duval’s progress report^xxii of 10 February 2005 stated the plaintiff’s diagnosis to be Non-Hodgkin's large cell lymphoma. By this stage the radiotherapy treatment was completed. Dr Duval reported a reduction in size of the left inguinal lymph node to 2.5 cm.

42 The plaintiff continued in very poor health for a significant period. In August 2005 she was admitted to the Sacred Heart Hospice for respite care. She moved to Newcastle in October 2005 and transferred for treatment by Dr Seldon at the Newcastle Mater Misericoridae Hospital.

43 A CT scan^xxiii of the plaintiff’s abdomen and pelvis was undertaken in November 2005. It reported an essentially normal study with no CT evidence of intra abdominal mass or lymphadenopathy. An ultrasound dated 7 July 2006 referred to moderate left sided hydronephrosis and the possibility of lymphoma relapse. A subsequent CT scan^xxiv of 25 July 2006 reported no sighting of enlarged lymph nodes but noted enhancement around the left psoas suggesting it is still an active process.

ISSUE 1 – Negligent Misdiagnosis

Infection v Richter’s Transformation

44 The plaintiff’s claim depended upon my accepting Dr Vaughan’s opinion that the plaintiff’s symptoms in 2004 were the result of an infection that caused an abscess to form in the psoas muscle. His opinion was that this development could and should have been treated with intravenous antibiotics over a period of six to eight weeks.

45 Dr Vaughan was critical of the following aspects of the first defendant’s treatment of the plaintiff:

1 He proceeded with chemotherapy in the absence of a definitive diagnosis.

2 A patient suffering from CLL was highly susceptible to infection and the possibility of infection should have been excluded before commencing CHOP therapy on the basis that a Richter’s transformation was suspected.

3 A definitive diagnosis of either infection or a Richter’s transformation could have been achieved through the performance of repeated surgical biopsies.

4 It was not acceptable to state, as was claimed by the first defendant, that the patient declined further biopsy.

46 Dr Vaughan accepted that in some circumstances establishing a definitive diagnosis could be difficult and that at times two conditions existed concurrently that required separate specific treatment. He did not accept that this was the situation faced by the first defendant at the time he commenced his treatment of the plaintiff. He said there was virtually nothing that supported the diagnosis of Richter’s transformation.

47 This was not my understanding of the material that was available to the first defendant at the time he decided to treat the plaintiff with the dual therapies of CHOP chemotherapy and antibiotics.

48 My understanding was that there were a number of features of the plaintiff’s presentation that were common to the diagnoses of Richter’s transformation and infection. They were:

Fever, drenching night sweats and weight loss;

Textural changes, so that the appearance on the CT scans heterogenous rather than homogenous;

CLL when progressing from its indolent stage becomes increasingly bulky but does so symmetrically. Infection and Richter’s transformation develop as localised problems;

Bacteroides may be found in the necrotic tissue of a tumour as well as in an abscess;

Hydronephrosis may be tumour or abscess related.

49 Dr Benson questioned whether the symptoms of fever, drenching night sweats and weight loss were typical of psoas muscle infection. Associate Professor Young thought that localised problems could occur in progressive untransformed CLL. However, I proceeded on the basis that the presence of these features was common to the determination of whether the condition was the result of infection or a Richter’s transformation.

50 More significant to the diagnosis were the features that were not present.

51 There was no finding of the large cells that were necessary to a definitive diagnosis of a Richter’s transformation.

52 A number features that were relevant to the issue of whether the plaintiff’s condition was the result of infection were missing.

53 There was no recorded finding of pain or tenderness in the area of the mass by any of the medical practitioners, including the first defendant, who examined the plaintiff. The first defendant said the muscle itself would be affected, especially if the abscess were of the size shown in the CT scans and of the extent that it was causing hydronephrosis. He said that spasms would occur and cause symptoms in the leg such as a limp or inability to straighten the leg. Dr Vaughan said that not all patients suffer from these symptoms.

54 In March 2004 at the Prince of Wales Hospital the plaintiff presented with a 10 to 12 day history of fevers and sweats. Her white cell count was four. There was no record of the changes in the blood in the nature of elevated white cells, platelets or signs of inflammation that might be expected if an infective abscess was present.

55 The plaintiff received two cycles of chlorambucil, a chemotherapy medication prescribed by Dr Lindeman. Her fevers abated but returned. The first defendant said serious infection would not be expected to improve in response to a chemotherapy drug. If anything, it would become worse.

56 Unless adequately treated, a psoas abscess has a very high mortality rate and essential treatment required the draining of the abscess and prolonged antibiotic therapy. The opinions of the first defendant, Associate Professor Young and Dr Benson were that plaintiff did not have treatment that would adequately resolve an infection of sufficient severity to cause a psoas muscle abscess to develop. Dr Vaughan’s own opinion was that the antibiotic treatment provided by the first defendant was inadequate.

57 Associate Professor Young pointed out that between her initial presentation in March 2004 and the commencement of treatment in July 2004 the plaintiff had received antibiotics for four days only, not on consecutive days but over a period of weeks. Dr Benson said that treatment with antibiotics alone would have been suboptimal and: The treatment of a large abscess like that is surgical drainage^xxv.

58 The evidence also indicated that an abscess would form quickly following infection. Associate Professor Young said of this:

I would have expected if they had not – if they had had a significant abscess that had been present for three months such that they were getting drenching night sweats and constitutional symptoms as we’ve described, I would not have expected that infection or abscess to have been able to go on for three months with minimal antibiotics without serious consequences . ^xxvi

59 The first defendant agreed that he did not consider whether the plaintiff’s condition was the result of a psoas muscle infection, although he claimed that he remained open at all times to the possibility of some type of infection. His preferred course of action was to treat the staph infection with seven days of antibiotics in the hospital. This was not possible because of the plaintiff’s wish not to remain in hospital. He considered, however, that infection was less likely to be the cause of the plaintiff’s symptoms. He said psoas muscle infection was very rare. He had never seen such an infection associated with leukaemia or blood disease in 30 years of practice in the field.

60 The first defendant said that by the time the symptoms of fevers and drenching sweats occurred, he would expect suppuration from the abscess. Fine needle aspirations produced no pus or white cells (polymorphs) that would indicate the presence of infection. The fine needle aspiration taken in August 2004 detected bacteroides 4+. This aspirate was taken under CT guidance directly from the centre of the area of necrosis. No pus was aspirated.

61 The first defendant said the organism reported on this occasion was not the previously detected staph aureus. It was an organism that commonly grew in and colonised necrotic tissue. He interpreted this finding as evidence of secondary colonisation of the necrotic tumour mass.

62 He said the fine needle aspiration involved seven passes under CT guidance directly into the cavity and, if there had been an abscess, it was highly likely the needle would have aspirated polymorphs, leukocytes, white cells and pus cells. There were none there. He did not think that the needle could miss the pus. He was reassured by the findings because they reinforced his belief that the tumour had become necrotic rather than there being no tumour at all. He knew of no other way of excluding an abscess than to put a needle directly into the area in question.

63 Dr Benson, similarly, thought that, if there was an abscess of the size of the mass, it was likely that at least one of the passes would have aspirated pus. He said it was utterly inconceivable^xxvii that an abscess of the size of the mass shown on the CT scans would not produce pus. He noted that the purpose of CT guidance was to locate the core of the mass where, if an abscess was present, it was certain that there would be copious quantities of pus. He said the only appropriate treatment of an abscess of this size was surgical drainage. Antibiotic therapy alone would not resolve the infection. He described treatment of such an abscess with antibiotics alone as extremely suboptimal^xxviii such that it would be regarded as medical negligence.

64 There was only one finding of the staph aureus organism. None of the blood cultures performed before or after that date produced evidence of this organism. This was notwithstanding Dr Vaughan’s evidence that infection caused by staph aureus had a tendency to recur.

The Stenting Issue

65 Dr Vaughan’s position on this issue was that the urgency of the plaintiff’s situation was the threat to her kidney posed by the hydronephrosis. He considered that this threat could be overcome by inserting a stent into the partially obstructed ureter. The procedure for this involved open surgery and presented an opportunity to biopsy the mass at the same time. If the biopsy was not determinative, further surgical biopsies should have been undertaken until a definitive diagnosis was obtained, while at the same time treating the plaintiff with antibiotics against the risk that the cause of her symptoms was infection.

66 The first defendant conceded that he did not give the plaintiff a choice on 2 July 2004 of a stent or chemotherapy. He said he was influenced by her reluctance to submit to invasive diagnostic procedures. He also said that when there was no definitive diagnosis it was necessary to consider the possibilities and, in the end, deal with the clinical situation that it presented and make a decision.

67 The first defendant agreed that he was very concerned at the potential that the plaintiff would lose a kidney and the finding of a staph aureus infection. For these reasons he considered the need for treatment was urgent. However, he denied that he told the plaintiff that she would lose her kidney if she were not treated within 24 hours. He suggested that the plaintiff might have misunderstood his advice that she should receive treatment within 24 hours. He agreed that he most certainly wanted the plaintiff to be in hospital within 24 hours. He recorded in his clinical notes a question mark concerning an infective element because he wanted to keep in mind other possibilities.

68 The first defendant gave the following reasons for his decision not to insert a stent to deal with the ureteric obstruction:

1 The plaintiff’s urine function at the time treatment commenced was normal.

2 Haematological malignancies were normally sensitive to treatment.

3 The stent was the second line of treatment in the event that chemotherapy was ineffective.

4 Stenting involved cystoscopy and the placement of the stent in the ureter, a procedure that involved risks of rupture of the ureter, infection, pain and blood loss.

5 His practice was to try to avoid stenting because of these potentially serious complications and it was not something that was done unless it was essential.

6 A stent would have done nothing to prevent further growth in the mass.

7 His diagnosis was that of Richter’s transformation for which chemotherapy was the most appropriate form of treatment. A stent would have done nothing to treat the Richter’s transformation.

8 The CT scan of 30 June 2004 indicated that the glands had increased in size and were encasing and obstructing the left ureter causing concern that this was an active process that, if allowed to continue, would lead to the loss of the left kidney.

9 The CT scans undertaken at the Prince of Wales Hospital showed extensive lymphadenopathy in the plaintiff’s abdomen and left pelvic area, indicating to the first defendant that the CLL was progressing not uniformly but in a localised area of her body.

69 Dr Vaughan questioned the apparent failure of the first defendant to consult with the hospital’s urology consultant. He noted that aspects of the clinical notes^xxix indicated that the plaintiff was prepared for surgery with no indication of what was proposed. He said there was nothing in the notes to explain the change in the management approach that he assumed involved surgery to obtain more material for diagnosis to the administration of chemotherapy.

70 The clinical notes did not indicate the purpose for which the plaintiff was prepared for surgery. The discharge summary^xxx did in fact indicate that urological review was undertaken and the opinion offered was that the requirement for ureteric stenting depended on the extent to which the chemotherapy shrunk the lymph nodes. The note considered the prospect of urgent stenting if the plaintiff became unwell or septic. It was open therefore to conclude that the preparations were made in the event that surgery to insert a stent became necessary.

71 Dr Vaughan said that a stent should have been inserted in any event because it was essential to the chemotherapy that the kidneys remained fully functioning to allow high urine output for the excretion of rapid tumour breakdown resulting from the treatment. If the kidneys were not fully functional, the consequences to renal function could be serious.

72 The first defendant disagreed with Dr Vaughan about the need for a stent to avoid tumour lysis. He said he took steps to avoid this. He agreed that the insertion of a stent would have provided more time for investigation concerning the cause of the mass.

73 Dr Benson agreed that a stent was not necessary to avoid tumour lysis provided there was intravenous hydration with the first course of chemotherapy and good urine output was obtained. He also agreed that, if the plaintiff was suffering from a Richter’s transformation, chemotherapy was needed urgently to relieve the ureteric obstruction and treat the mass. Inserting a stent would not have met this need and would have resulted in unnecessary delay.

74 In response to the apparent agreement between Dr Vaughan and Associate Professor Young that it was appropriate to insert a stent before commencing chemotherapy, the first defendant said this was not standard practice when treating lymphomas because they responded well to treatment. He expected the tumour to shrink sufficiently to relieve the obstruction of the ureter more quickly than the time that would have been involved in stenting.

The Biopsy Issue

75 All medical experts agreed that surgical biopsy of the mass itself could have assisted in establishing a definitive diagnosis. Dr Vaughan expressed this view as an absolute certainty.

76 The first defendant noted the features that indicated to him that the plaintiff’s condition was tumour related, many of which were also consistent with the presence of tumour or infection. He put forward the following as reasons why he proceeded without surgical biopsy:

1 Although, he was aware of the serious nature of the finding of staph aureus, the finding was made in only one of two samples and he considered it possible that it was the result of contamination at the time of collection. Nevertheless he wished to treat the plaintiff urgently for both the potential staph aureus infection of the blood and the obstruction of the ureter from the progression of the lymphadenopathy.

2 Blood cultures were repeated on the plaintiff’s admission to St Vincent’s Hospital on 2 July 2004. The results were negative, raising doubt as to whether there was a genuine staph aureus infection. The plaintiff was treated with antibiotics as a precautionary measure.

3 The plaintiff suffered a deep vein thrombosis in her left leg between her consultations with him in May and June 2004 for which the plaintiff was treated with Warfarin. The first defendant considered this information to be significant because the thrombosis was a further indicator of malignancy that caused blood to become more prone to clotting.

4 Warfarin thinned the blood making diagnostic testing more difficult. There was a risk of excessive blood loss in using needles or undertaking biopsies in the presence of blood thinned by Warfarin and a risk that a clot could recur and spread to the lungs.

5 He firmly believed that a Richter’s transformation was the cause of her symptoms. He did not believe there was time to undertake further investigative procedures before commencing chemotherapy.

6 The plaintiff did not want to undergo further surgical biopsy.

77 The first defendant said that at the time of the plaintiff’s admission to St Vincent’s Hospital he was proposing surgical review to assist in determining whether the nodal mass with the necrotic centre also contained infection and to confirm that the course of treatment he proposed was appropriate. No surgical review was undertaken because the plaintiff did not wish to stay in the hospital. The surgical consultant had not seen the plaintiff by the time she left the hospital. Dr Beaumont, whose name appeared in the hospital’s clinical records, was the surgical registrar. He saw the plaintiff and the first defendant expected that, in normal circumstances, Dr Beaumont would have discussed her condition with the surgical consultant.

78 As to whether a surgical biopsy should have been undertaken at a later stage in the plaintiff’s treatment, when the mass did not respond as expected to chemotherapy, the first defendant said he found no evidence of a psoas abscess in any of the diagnostic tests. The finding of bacteroides, regardless of the number of plusses, was not necessarily evidence of infection. He prescribed Flagyl as a preventative step only in response to that finding. He did not consider surgical biopsy at this point because, aside from the bacteroides 4+, the fine needle biopsy provided no evidence of infection.

79 Associate Professor Young accepted that in an ideal world a biopsy should have been repeated until a definitive diagnosis was established but offered the following as reasons why he considered the first defendant’s approach was reasonable:

1 Having considered the information available to the first defendant at the time of the decision to proceed with CHOP therapy, in the same situation he probably would not have recommended another open biopsy.

2 He suspected that a further biopsy might yield the same results, namely … a mixture of small lymphoid cells, consistent with CLL/SLL and larger necrotic cells, leaving the question of RT potentially unresolved ^xxxi .

3 The evidence strongly indicated that the plaintiff needed urgent treatment because the progressive lymphadenopathy was threatening her kidney. Delay could have resulted in significant and rapid deterioration of the plaintiff’s condition.

4 Dr Vaughan’s approach involved the prospect of repeated biopsies. The first defendant acted reasonably in circumstances where the plaintiff declined further biopsy.

80 The plaintiff consulted Associate Professor Seymour in October 2006. Professor Seymour stated that quite reasonably in the circumstances there was a high level of suspicion of transformation of her CLL to a more aggressive process^xxxii. He went on to state that the treatment with intensive chemotherapy and high dose external beam radiation therapy was appropriate. He noted that first imaging in 2004 documented a complex heterogenous left psoas mass and said that very reasonably there was a high index of suspicion of a Richter’s transformation that was not confirmed on any invasive biopsy.

81 Dr Benson considered there was sufficient urgency to warrant proceeding without biopsy. He said that formal biopsy might have been of assistance in more accurately defining the diagnosis. However, his opinion was that the first defendant proceeded on a course of management that would be widely accepted as complying with a good standard of care. He maintained this opinion although in retrospect it could be argued that the plaintiff had never suffered a Richter’s transformation. He considered that the improved appearance on the 2005 CT scan did not prove that the diagnosis was erroneous because, in rare cases, a patient could recover from a Richter’s transformation.

Credit Issues

82 The first defendant said that at the initial consultation on 19 May 2009 he raised the need for further investigations, including by means of surgical biopsy, to obtain information necessary to establish a diagnosis of Richter’s transformation. He said the plaintiff became distressed at the prospect of more tests and hospitalisation. He therefore noted that the plaintiff was unwilling to have further surgery^xxxiii.

83 The first defendant stated that on 29 June 2004 he told the plaintiff that further tests would be required to establish a definite diagnosis and to be more definite concerning her prognosis and the appropriate therapy to be adopted. He said he obtained the impression that the plaintiff was not keen to embark on a range of further investigations. He noted …discussed possible options including surgery - unwilling^xxxiv. The term surgery related to surgical biopsy. The first defendant again claimed that the plaintiff demonstrated distress as the prospect of surgery.

84 The first defendant conceded that he may not have used the words surgical biopsy but maintained that he advised the plaintiff to have further investigations.

85 The plaintiff and Ms Symons-Vaughan emphatically denied that the first defendant discussed the need for a surgical biopsy at any time. The plaintiff said that when she was at St Vincent’s Hospital on 2 July 2004 nothing was said to her about surgery or that she should not leave hospital because she needed surgical investigation.

86 The plaintiff and Ms Symons-Vaughan denied that the plaintiff told the first defendant that she was unwilling to submit to further diagnostic procedures. Ms Symons-Vaughan remembered that at the consultation of 29 June 2004 the first defendant said he wanted the plaintiff to have blood tests and a CT scan and she agreed to have those investigations.

The Credit of the First Defendant

87 It was suggested to the first defendant that the material concerning the plaintiff’s resistance to surgical intervention was added to his notes at a later date for the purposes of protecting him against liability.

88 It was pointed out that there was no space between these notes and his initials, whereas in other places he appeared to adopt a practice of leaving a space of one or two lines. The first defendant denied that these entries were made on dates other than 19 May and 29 June 2004 He said:

It was my practice to finish these notes in my office. I didn’t always finish them exactly when I saw the patient. I took them back to my office and completed them that day or that evening, so that could explain some of these things but they’re certainly contemporaneous with those, with those entries. ^xxxv

89 The first defendant’s reports to Dr Symons on 18 May 2004 and 6 July 2004 made no reference to the plaintiff’s resistance to surgery. The first defendant agreed that this was a relevant matter on which to inform Dr Symons.

90 He denied that he informed Professor Seymour on 10 November 2006 that the plaintiff was unwilling to have further intrusive investigation such as surgery^xxxvi with the intention of conveying the impression that the plaintiff was responsible for depriving him of the opportunity to arrive at a definitive diagnosis.

91 The first defendant’s letter^xxxvii to Dr Duval of 30 November 2004 stated:

FNA of this mass has revealed necrotic tissue and large lymphoid cells ? Richter’s transformation (large cell lymphoma). … She developed haemorrhagic cystitis from the chemotherapy so retreatment would be difficult.

92 In a response^xxxviii of 30 November 2004 Dr Duval referred to transformation due to non-Hodgkin’s lymphoma.

93 On 6 April 2005 the first defendant referred the plaintiff to Dr O’Neill for consultation in respect of haemorrhagic cystitis. In the letter of referral he stated^xxxix:

She initially had CLL and then was found to develop probable large cell transformation with a left sided pelvic mass at Prince of Wales Hospital. She underwent needle aspiration of this mass which revealed abnormal lymphoid cells.

94 The first defendant reported^xl to Dr Seldon on 7 October 2005:

She had a fine needle aspiration … carried out at Prince of Wales Hospital and large lymphoid cells were seen, suggesting that this was a large cell transformation of the CLL.

95 It was put to the first defendant that he wrote these letters with intention of misleading those to whom they were sent into believing that a firm diagnosis of a Richter’s transformation had been made. The first defendant initially stated that the reference in this correspondence to large cells was a mistake and that he obviously had in mind that the cells were large when in fact they were necrotic. He said he inadvertently misstated the evidence of Richter’s transformation in his letter to Dr Duval.

96 He agreed that he did nothing to correct the statement appearing in Dr Duval’s response of 30 November 2004 to the effect that the plaintiff’s symptoms were … due to transformation to non-Hodgkin’s lymphoma. This was because he believed this was the correct diagnosis.

97 The first defendant said at the time of writing the letter of referral that he spoke to Dr Duval at length, told him of the information that he had, including the results of biopsies, and told him that he was concerned that this was not a proven case of Richter’s transformation. He also said that Dr Duval had access to the material in the St Vincent’s Hospital notes, including that which recorded the finding of 4+ bacteroides fragilis. Regretfully, Dr Duval died prior to the hearing and the court was left without the benefit of his evidence.

98 After an overnight break, the first defendant changed his evidence concerning the reference to large cells in his correspondence with Drs Duval, Dr O’Neill and Seldon. He said he reviewed the material in the files of the Prince of Wales Hospital including letters of Dr Lindeman that referred to large cells based on flow cytometry reports and not the cytology report to which he was referred on the previous day. The letter to which the first defendant referred was dated 8 April 2004. It was addressed by Dr Lindeman to Dr Ktenas and, in dealing with flow cytometry, read:

… what would appear to have been larger cells, are largely necrotic and have been unable to be analysed. The cytological appearance is also of necrosis and I am therefore unable to convincingly make a diagnosis of a Richter’s transformation of CLL to an intermediate grade lymphoma. This, nevertheless, is at the top of my list of diagnostic possibilities. Unfortunately, no material was sent for culture, but I would think that secondarily infected nodal mass is a less likely for Cary’s symptoms.

The Credit of the Plaintiff

99 There was ample evidence to indicate that the plaintiff did not accept medical advice without question and that she was resistant to medical intervention unless she was satisfied that it was absolutely necessary.

100 The plaintiff agreed that she rejected the recommendation that she receive a vaccination that would protect her against influenza. This was particularly relevant because CLL rendered her vulnerable to infection with potentially serious consequences. Her reason for rejecting the recommendation was that, after as much investigation as she could undertake, she was not keen on vaccination for herself or her children. She knew a number of doctors who chose not to accept vaccination or to vaccinate their children.

101 The plaintiff had a similar attitude to chemotherapy because she knew of doctors who chose not to receive this treatment and who advised their families not to have it.

102 Dr Scott-Stevenson was the plaintiff’s general practitioner between 1995 and 2002. The plaintiff transferred to another general practitioner in response to conduct of Dr Scott-Stevenson that the plaintiff considered to be unprofessional. This included providing the plaintiff with incorrect information, ringing her to tell her that she had a fatal form of throat cancer when she was at home alone and without support, leaving a detailed message concerning her illness on her answering machine where her younger daughter could have heard it and maintaining inaccurate records that deleted all reference to the plaintiffs concerns about lumps in her throat. Of Dr Scott-Stevenson, the plaintiff said:

I was appalled by her, I hated her. ^xli

103 In March 2004 the plaintiff presented at the Emergency Department of the Prince of Wales Hospital on the recommendation of Dr Ktenas, her general practitioner. Hospital staff wished to admit her so that she could receive intravenous antibiotics but she left against medical advice. The plaintiff said she did so because she felt that she was at greater risk of infection from others waiting in the Emergency Department. She telephoned her brother, Dr Symons, who agreed that it was a good idea for her to leave the hospital since she was not feeling particularly unwell. In this respect she said:

…I consider hospitals are about the most dangerous place you can be when you’re not well. I have a number of friends that have gone into hospitals with minor complaints and have ended up with – close to death with infections they have caught in hospitals. In the casualty department there were people coughing and et cetera all around me, so I felt I was – that were very close by. I felt I was at risk of catching something else. ^xlii

104 The plaintiff declined a general anaesthetic for the purposes of the surgical biopsy undertaken by Dr Truskett. This was because she knew of persons who had become ill when coming out of the anaesthetic. She discussed this with Dr Truskett who agreed to proceed relying on local anaesthesia.

105 The result was that she experienced great discomfort throughout the procedure. She described it in the following terms:

I was told that it would be brief. I thought it was going to be about ten to 15 minutes, but it was about 45 minutes. I wasn’t given enough local anaesthetic and I thought I was having a laparoscopy which I was told was keyhole surgery, but I could feel him cut me and I could feel what the length of the cut was, so I was confused because I thought if it was keyhole that there would not be a reasonable size cut. I remember it was, seemed incredibly brutal and I remember it, just seeing his hand sort of bashing away. I felt like I was a piece of cattle that was being cut up. His hand was back and forth as though he was bashing the hammer or something, hammering away. ^xliii

106 The plaintiff stated that Dr Lindeman told her that the procedure that Dr Truskett was to undertake was a laparoscopy. She asked what this was and he told her it was keyhole surgery. When she was on the operating table, she realised it was decent sized cut, that it was presumably not keyhole.^xliv

107 The plaintiff undertook some research into laparoscopy prior to the procedure but what occurred was different to her understanding. The plaintiff initially said that Dr Truskett told her nothing about the nature of the procedure he was to undertake, except that its purpose was to obtain more material. She subsequently said he told her he would be performing a laparoscopy and asked her if she knew about it, to which she responded that she did. She did not ask Dr Truskett what procedure he in fact performed because she was too exhausted.

108 On 10 May 2004 the plaintiff presented at Prince of Wales Hospital for treatment with chemotherapy prescribed by Dr Lindeman. She said Dr Lindeman told her that the chemotherapy he proposed would not cause side effects such as nausea and hair loss. The nursing staff at Prince of Wales told her that the treatment would make her very ill and cause her to lose her hair. As a result she lost faith in what was happening and declined to proceed.

109 On 4 July 2004 the plaintiff self discharged from St Vincent’s Hospital after receiving the first cycle of CHOP chemotherapy. She said she did so because it was very cold in the hospital room because her bed was under an air conditioning vent.

110 In August 2005 the plaintiff consulted Dr O’Neill, urologist, concerning her claimed condition of haemorrhagic cystitis. He advised her that investigation of her condition required a cystoscopy. The plaintiff declined to proceed with this investigation because Dr O’Neill said that there was a risk that it would make her condition worse. She did not favour the options that Dr O’Neill described to relieve her discomfort.

111 In May 2006 the plaintiff consulted Dr Ainsworth who also proposed a cystoscopy. She said he advised her that one of the possible risks of this procedure was the rupture of the bladder and that if that occurred she would be in serious trouble. She declined to have the procedure.

112 The plaintiff was referred to Dr Katelaris for medico-legal consultation on behalf of the defendants. The plaintiff denied that she refused his request for vaginal examination. Dr Katelaris said the plaintiff flatly refused to allow him to examine her vaginally, stating that no other doctor she consulted asked her to submit to such an examination. He said he told her that it was an important part of the assessment of her condition but she had set her face against it ^xlv.

113 The plaintiff continued to the date of the hearing to decline to submit to investigation to allow diagnosis of her current condition and formulation of treatment that might relieve her discomfort.

The decision to refer the plaintiff to radiotherapy

114 Dr Vaughan said that the failure of CHOP chemotherapy after three cycles to make a significant difference in the size of the mass should have prompted an entirely different approach to the plaintiff’s treatment. He said it was particularly fundamental that a surgical biopsy be undertaken at this stage. He was critical of the decision to proceed with radiotherapy to treat the plaintiff at a stage when doubt should have arisen concerning her diagnosis.

115 The first defendant said that by 26 August 2004 there was some reduction in the size of the tumour and there was no further obstruction of the ureter. A CT scan reported that the kidney still had good renal function and excretion. The tumour did not show the reduction in size that he hoped for and it had not responded adequately to the treatment. He therefore continued with investigative tests because he still had no definitive diagnosis. Those tests did not include surgical biopsy.

116 He also considered other therapies that worked on other patients. He believed that radiotherapy and mabthera in combination was effective in trying to sterilise Richter’s transformation.

117 There was some indication from the evidence that the plaintiff herself requested a referral for radiotherapy. She agreed that she told the first defendant in October 2004 that her symptoms of cystitis were improved. She said the first defendant told her that he did not need to see her again and that she would be looked after through palliative care. She then raised the matter of radiotherapy because he had discussed this treatment with her at an earlier stage. She said she, Ms Symons-Vaughan and Dr Symons all contacted the first defendant a number of times for the name of a radiation oncologist.

118 The plaintiff agreed that she consulted with Dr Duval. She did not remember any discussion with him on the question of whether radiotherapy was appropriate for her. She remembered only discussing the treatment that was required and what it involved.

119 Associate Professor Young and Dr Benson agreed that surgical biopsy would have been an appropriate investigative procedure at this stage and that consideration of alternative methods of treatment was warranted. They both expressed the opinion that radiation therapy was a reasonable and appropriate form of alternative treatment.

120 Associate Professor Young accepted that it was a reasonable proposition to suggest that, at the time of the referral to Dr Duval, it was less likely that the plaintiff had suffered a Richter’s transformation. However, he said, it was reasonable or possible to conclude that the combination of CHOP chemotherapy and radiotherapy controlled at the local level the change in the plaintiff’s condition and achieved the outcome that occurred.

121 Associate Professor Young also considered it reasonable that the first defendant referred the plaintiff to the Director of Radiation Oncology, another senior specialist, for a second opinion. The opinion provided by Dr Duval was a recommendation for radiotherapy. He said this was an approach that he often took when he thought that radiotherapy might be a reasonable option to consider because he was not an expert in radiation treatment.

122 Dr Benson said that the lack of response to three cycles of CHOP chemotherapy, with the cyclophosphamide element at lower than a standard dose, did not mean that there was no Richter’s transformation. He considered that local radiotherapy was appropriate for a continuing local problem.

ISSUE 1 - FINDINGS

Misdiagnosis

123 I rejected the claim that the plaintiff’s symptoms were caused by a psoas muscle infection. There was inadequate material upon which to draw that conclusion.

124 Too many indicators that might be expected to have been apparent if the mass was an infected abscess in the psoas muscle were missing from the evidence to allow a finding that this was the cause of her symptoms.

125 I rejected the claim that the first defendant failed to take account of the prospect that infection was a cause of the plaintiff’s symptoms. His clinical notes questioned infection as a possibility.

126 The clinical notes recorded by the doctors who attended the plaintiff when she was admitted to the hospital in July 2004 for the first CHOP cycle were fully aware that infection was a possible source of her symptoms. These notes referred to the finding of staph aureus immediately prior to that admission. The plaintiff was treated with antibiotics intravenously as a precaution. Intravenous administration of antibiotics would have continued had the plaintiff not requested early discharge from the hospital.

127 While respecting Dr Vaughan’s opinion that he would not have approached the plaintiff’s treatment in the way in which the first defendant proceeded, I rejected the claim that the plaintiff’s condition was misdiagnosed or that the method of arriving at the diagnosis was demonstrative of a breach of the defendant’s duty of care to the plaintiff.

128 Although the first defendant stated that he kept an open mind on the question of diagnosis, it was clear that initially he was confident of his diagnosis of a Richter’s transformation and that this confidence dictated his approach to the plaintiff’s treatment by way of CHOP chemotherapy.

129 I accepted his evidence that after the third cycle of CHOP chemotherapy his confidence in his diagnosis was reduced to the point where he undertook further investigation that was inconclusive as to whether the plaintiff suffered a Richter’s transformation or a localised progression of CLL.

130 I was not persuaded that one or other of these diagnoses was wrong. It was not suggested that CHOP chemotherapy was inappropriate for the treatment of either of these conditions.

Stenting

131 I find that there was no breach of the first defendant’s duty of care in the decision made to avoid the insertion of a stent for the following reasons:

1 The insertion of the stent was proposed by Dr Vaughan as a means by which kidney function might be preserved while surgical biopsy, repeatedly if necessary, was undertaken until a definitive diagnosis was obtained.

2 The first defendant advanced a number of convincing reasons for his decision not to adopt the course preferred by Dr Vaughan.

3 Urological advice was sought and provided to the effect that stenting was not essential prior to the administration of the first cycle of CHOP chemotherapy.

4 While it did not achieve the reduction in the size of the mass that was anticipated, the treatment undertaken appeared to halt its progress so that the stenting procedure, with its associated potential risks and complications, was never required.

Biopsy

132 I find that there was no breach of the first defendant’s duty of care in the decision to proceed with CHOP chemotherapy without first undertaking surgical biopsy for the following reasons:

1 Investigations up to the time that the first cycle of CHOP chemotherapy was administered indicated that the CLL was progressing or transforming and that treatment was required urgently to deal preserve the functioning of the left kidney.

2 The investigations were not convincing that the plaintiff’s symptoms were solely related to infection.

3 I accepted Associate Professor Young’s opinion that a biopsy would not necessarily provide the definitive diagnosis preferred by Dr Vaughan, unless undertaken repeatedly in a patient who was unwell and potentially facing a very short term life expectancy.

4 Dr Vaughan was the only medical expert to state that treatment should not have been commenced in the absence of a definitive diagnosis. Associate Professor Young, Dr Benson and Professor Seymour considered the first defendant’s course of treatment to be reasonable in the circumstances at the time and one that was widely accepted as complying with a good standard of care.

5 Repeated biopsy was a particular problem, given the plaintiff’s attitude to treatment. In this respect, I preferred the evidence of the first defendant that the plaintiff resisted invasive investigation.

6 I did not accept the proposition that the first defendant altered his notes to refer to the plaintiff’s resistance to surgical biopsy. This was a serious allegation for which persuasive evidence would be required. It was not provided.

7 I did accept the evidence of the plaintiff and Ms Symons-Vaughan when they stated that the first defendant did not speak of a surgical biopsy. The first defendant conceded that he might not have used this term.

8 I accepted the first defendant’s evidence that the plaintiff demonstrated an unwillingness to undergo invasive investigative procedures. Her attitude to medical treatment has been detailed. She had, as recently as April 2004, undergone a procedure for surgical biopsy that left her considerably traumatised.

8 Further, the material dealing with the plaintiff’s relationships with medical advisors demonstrated that the plaintiff consistently complained that she was misinformed or not informed about her condition or treatment to the point where her evidence lacked credibility.

Radiotherapy

133 It was not possible to decide the extent to which the first defendant’s reference to large lymphoid cells in his letter of referral might have influenced Dr Duval’s decision to proceed with radiotherapy. However, the letter itself indicated that by this stage the first defendant questioned the diagnosis of a Richter’s transformation.

134 I find that after the third cycle of CHOP therapy failed to reduce the size of the mass to the extent anticipated, the first defendant acted appropriately in undertaking further investigations. I find that those investigations produced no indication that the mass was the product of infection in the psoas muscle.

135 Dr Duval, a respected and senior radiation oncologist, discussed the plaintiff’s condition with the first defendant, had the hospital file available to him and consulted with the plaintiff before commencing radiotherapy.

136 Associate Professor Young and Dr Benson confirmed that referral to Dr Duval for opinion and treatment was appropriate and reasonable. Associate Professor Young’s opinion was that the combination of chemotherapy and radiotherapy might have brought about the positive improvement in the plaintiff’s condition that subsequently occurred.

137 I find that the first defendant acted appropriately in referring the plaintiff to Dr Duval for opinion and treatment.

ISSUE 2 - HYDRATION

138 The plaintiff’s claimed that she was not told at any stage during her chemotherapy treatment that she needed to drink substantial quantities of fluids in order to flush her kidneys. She claimed that she was not told that potential consequences of failing to drink adequate quantities of fluids were irritation of the bladder and the development of cystitis. She denied that she was provided with written information concerning the side effects of failing to maintain adequate hydration.

139 The defendants relied on the evidence of two witnesses to submit that the plaintiff was given comprehensive advice concerning potential side effects of chemotherapy on two separate occasions. The first was at the Prince of Wales Hospital in March 2004 at the time that, on hearing of the nature of certain of the side effects of the proposed treatment, the plaintiff declined to proceed. The second was at St Vincent’s Hospital on 3 July 2004.

140 Ms Tracey McClelland attended the plaintiff at the Prince of Wales Hospital in March 2004. Ms McClelland qualified as a registered nurse through the University of Salford in England. She commenced employment at the Prince of Wales Hospital in 2002 in the Oncology Ward.

141 Ms McClelland remembered having attended the plaintiff because of her refusal of treatment when told of the side effect of hair loss.

142 Ms McClelland said she remembered sitting and talking to the plaintiff, discussing the drugs that were to be administered. She told the plaintiff of the side effects of the drugs and the measures to be taken at home for safe management of the toxic effects of the drugs. These measures included the need for hydration. She estimated that this discussion extended over about half an hour. Written information was also provided. She said the plaintiff took part in the conversation, showing interest and asking questions.

143 As to hydration, Ms McClelland said that her usual practice was to tell patients of the need to be hydrated, particularly in relation to cyclophosphamide because it could irritate the bladder and cause haemorrhagic cystitis.

144 Towards the end of the conversation, Ms McClelland mentioned the side effect of hair loss and after further discussion and checking with medical staff the plaintiff declined treatment. Before making her final decision, Dr Lindeman was called to speak with her.

145 Ms McClelland said it was her practice to go through the written materials one by one. She did this with the plaintiff who appeared to understand what was said and raised no concerns except in relation to hair loss.

146 The written material included a document^xlvi providing patient information about the drug cyclophosphamide. It listed a number of possible side effects including the following as an Uncommon side effect:

1. Bladder irritation, developing hours to weeks later. This is noticed as pain on urinating and there may be blood or blood clots in the urine. Large volumes of fluids lessen the risk of this side effect.

A Special Instruction directed the patient to try to drink at least 1.1/2 litres of water each day.

147 Ms McClelland said that she could not remember the order in which she discussed with the plaintiff the side effects listed on this document but she specifically remembered talking about hydration.

148 The plaintiff said she had some information concerning side effects of chemotherapy before she went to the Prince of Wales Hospital in March 2004 and that at the hospital she was given a folder of information concerning the side effects of various drugs. She did not know what happened to this folder. She denied that she was given any advice concerning the need to hydrate. She said the first thing the nurse told her was that she would lose her hair and become very ill and the discussion did not reach the point of educating her of the need to drink fluids.

149 Ms Symons-Vaughan was present with the plaintiff at the Prince of Wales Hospital. She remembered that the nurse spoke with the plaintiff for about 15 to 30 minutes about how the chemotherapy would be administered and some of the side effects, such as nausea, hair loss, appetite and weight loss. She did not remember all of the conversation or whether the plaintiff was given written materials. She did not remember if the nurse told the plaintiff that it was important to drink lots of fluid.

150 Ms King attended the plaintiff on 3 July 2004 at St Vincent’s Hospital. Ms King qualified as a registered nurse in Cambridge in England in 1992. Haematology has been her speciality since 1993. From 1999 to 2003 she was Nurse Unit Manager of the Haematology Ward at Addenbrooke’s Hospital in Cambridge. She commenced work at St Vincent’s Hospital in 2003, occupying the position of Clinical Nurse Specialist from January 2004.

151 Ms King did not specifically remember the plaintiff. Her evidence was given on the basis of her usual practice and review of her notes^xlvii made on 3 and 4 July 2004. As to her usual practice, Ms King said it was:

… to sit down with the patient and explain chemotherapy. I like to just go through what the drugs are, what some of the side effects are, so that they’ve got some time to take that information in and then when I come back at a later date they’ve had time to think about it and ask any further questions. ^xlviii

152 It was her practice to explain the need for her to wear protective clothing and then to leave the patient with information sheets and allow them time to read them through. CHOP chemotherapy took about 40 minutes to administer. It was necessary to sit beside the patient’s bed and this allowed time to talk matters through with the patient and their family, if in attendance, and to ensure that they had a good understanding of the treatment, the potential side effects and what they should do if they suffered side effects.

153 The length of time involved was initially 15 to 20 minutes and then a further 20 to 30 minutes at the bedside.

154 Ms King’s practice was not to refer to the paperwork because she had sufficient experience to know what it contained. The paperwork was left with the patient by way of back up.

155 As to side effects, Ms King nominated: bone marrow depression, causing anaemia, fatigue or breathlessness; a drop in white cell count increasing susceptibility to infection; change in colour of the urine; and nausea and vomiting. She said patients were advised of the importance of maintaining a healthy diet and keeping the kidneys flushed by an adequate fluid intake. Patients were told to drink sensibly and aim to drink a minimum of two litres per day throughout the whole of the course of the chemotherapy.

156 The documents left with the patient were similar to those^xlix in evidence that were dated 13 November 2008.

157 Ms King’s nursing notes indicated that the chemotherapy was administered uneventfully and that the treatment plan and side effects were explained.

158 None of the documents referred to by Ms King expressly stated that it was necessary or advisable to drink at least two litres of fluids daily during the course of the treatment. The document relating to cyclophosphamide stated that bladder damage could occur but that it was uncommon. It was suggested that drinking extra fluids so that you are passing clear urine on the day of therapy would minimise the risk. Special instructions also provided for extra fluids to be taken on the day of therapy so that you are passing clear urine.

159 Ms King said that, although these instructions referred only to the date of treatment, it was her practice to inform patients to drink extra fluids for the entire course of their treatments.

160 She rejected the proposition that she did not inform the plaintiff of all of the side effects listed in the information sheets and, although she had no precise recollection, she said it would be very unlikely that she did not provide the plaintiff with the written materials. She said her purpose was to ensure that patients paid attention and that they understood the life threatening consequences of ignoring side effects so that she felt that she could safely administer chemotherapy.

161 The plaintiff denied that she was given any written materials at St Vincent’s Hospital on 3 July 2004. She said no side effects were discussed and nothing was said to her about the need to drink fluids. She denied that she was told to eat and drink sensibly and said absolutely not^l in response to the suggestion that she was told to drink two litres of water per day through the whole of the treatment. She said she already knew what the side effects were. She specifically denied that the nurse who sat with her during the administration of chemotherapy advised of side effects such as bone marrow suppression, decreased white blood cell count, changes in colour or urine, constipation, peripheral neuropathy, hair loss or infertility. She said it was possible that the nurse mentioned nausea and anti-nausea drugs. She denied that the nurse explained the need for the protective clothing that she wore while administering chemotherapy.

162 The plaintiff did not regard it as unusual that she was provided with no verbal or written information concerning her treatment at St Vincent’s Hospital because she was facing death, possibly within a few days. Her position was that she received virtually no information from the hospital.

163 Ms Symons-Vaughan said that on 3 July 2004 a nurse came to the room with the drugs and put on a gown and gloves. She explained how the chemotherapy would be administered, discussed the protective clothing that she would wear and said that she would stay throughout the procedure. The nurse spent some time explaining the process. Ms Symons-Vaughan did not remember if the nurse explained the side effects of the drugs. She thought something might have been said about anti nausea medication and red coloured urine. Nothing was said about bone marrow, white blood cells, bleeding or bruising, constipation, peripheral neuropathy or infertility. She remembered that advice was given about the need to eat to keep up strength. She denied that anything was said about drinking two litres of water per day throughout the course of the treatment. She said the only reference to water was made in terms of general nutrition.

164 Ms Symons-Vaughan denied that any written material was provided by the hospital to deal with the drugs that were involved in the CHOP therapy.

165 The plaintiff denied that there was any discussion about side effects on 27 July 2004 when the second cycle of CHOP therapy was administered. Ms Symons-Vaughan remembered receiving some pamphlets published by the Cancer Council that dealt with generalised health care while having chemotherapy and said that there was not as much explanation on the second occasion not in depth like the first time ‘round’^li.

166 The notes^lii completed at the time of the second cycle of CHOP therapy indicated that there was concern that the plaintiff’s blood sugar level was elevated and an endocrinologist was asked to see her. She was instructed to have a fasting BSL the following day at the diabetes clinic and told not to have food prior to this test. The clinical note concluded:

Treatment otherwise given without complication. Pt has a good understanding of ?? for next four days. Daughter with pt and also has good understanding.

167 The plaintiff said that on this occasion the first defendant consulted with her but said nothing concerning hydration.

168 After administration of the second cycle, the plaintiff developed mild symptoms of cystitis. She said she told the first defendant of these symptoms but she did not remember his response. He provided a prescription for medication to deal with the symptoms.

169 There was a dispute concerning the time at which the plaintiff told the first defendant of these symptoms. The plaintiff claimed that her complaint was made prior to the administration of the third cycle of CHOP chemotherapy and that the first defendant’s response was to the effect that this was a symptom that would resolve on completion of the treatment. The first defendant said it was unlikely that he was told of these symptoms before the treatment was provided and that, if told, he would not have proceeded with the treatment.

170 The plaintiff said that at the time of the administration of the third CHOP cycle nothing was said of the need to drink water. It was after this cycle that the plaintiff developed symptoms of haemorrhagic cystitis.

171 After moving to Newcastle in 2005, the plaintiff joined a cancer support group. The plaintiff and Ms Symons-Vaughan attended a meeting of this group that was addressed by the chemotherapy pharmacist from the Mater Hospital. He informed the group of the need to drink fluids while undergoing CHOP therapy. Their memories of precisely what was said differed in some respects but they both said that this was the first time they became aware that it was necessary to drink copious quantities fluids to avoid damage to the bladder.

172 The plaintiff said that had she been told she would have followed instructions and avoided the pain and agony that she suffered.

173 Associate Professor Young expressed surprise at the concept that the plaintiff was not told to drink plenty of fluids while undergoing chemotherapy because it was general practice to give this advice. He said CHOP chemotherapy was a common treatment for patients suffering from Non-Hodgkins lymphoma and nursing staff were familiar with and trained in its administration.

174 The protocol adopted at St Vincent’s Hospital in relation to CHOP chemotherapy at the time of the plaintiff’s treatment was not in evidence. The defendants produced a protocol^liii for therapy known as CEOP that was dated April 2000 and reviewed in April 2001. Associate Professor Young said that this protocol was satisfactory and in keeping with established practice in Australia. It provided:

FLUID REGIMEN : 500mls 0.9% saline is required for administration of all bolus injections and hydration for Cyclophosphamide. Encourage an oral intake of approx 2 –3 L over the next 24 hours.

175 Associate Professor Young pointed to the notes that indicated that, in accordance with general practice and with the protocol, 500 ml of saline was infused intravenously at the time of administration to the plaintiff of each cycle of therapy.

Issue 2 - Findings

176 In ordinary circumstances I would give little weight to the evidence of Ms McClelland about the advice that she gave to the plaintiff at the Prince of Wales Hospital in March 2004 on the basis that it was irrelevant to the nature of the advice given at St Vincent’s Hospital in July 2004.

177 I regarded her evidence, however, as persuasive on the issue of the plaintiff’s credit.

178 Ms McClelland was able to recollect specifically the advice she gave to the plaintiff, the written material and, importantly, that she advised the plaintiff of the need for hydration and the potential side effects of inadequate hydration. She remembered that the plaintiff engaged with her and asked questions about the treatment. Ms Symons-Vaughan remembered a 15 to 30 minute session with Ms McClelland about side effects.

179 In contrast, the plaintiff said her discourse with Ms McClelland was brief because the only side effects discussed before she declined to proceed with treatment were nausea and hair loss.

180 I find that the plaintiff was not honest in her evidence concerning the advice given to her by Ms McClelland. This undermined my confidence in her evidence about the advice and information provided to her at St Vincent’s Hospital.

181 While Ms King did not remember the plaintiff, she was a qualified and experienced clinical nurse specialising in haematology at the time she attended upon the plaintiff in July 2004. No cogent reason was put forward as a basis for rejecting her evidence of her standard practice.

182 Ms Symons-Vaughan agreed with most of Ms King’s evidence. Her only qualification was that she did not recall that Ms King advised the plaintiff to drink two litres of water throughout the course of the treatment. She described the advice given as an in depth explanation.

183 Again the plaintiff’s version was in marked contrast. I rejected as not credible her evidence that she was given no written materials or verbal advice about the CHOP chemotherapy treatment at the time of administration of the first cycle.

184 There was no evidence concerning the advice given prior to administration of the second and third cycles of CHOP chemotherapy.

185 I had some concern that the plaintiff was directed to fast for blood sugar testing the day after administration of the second cycle. There was no indication of whether the plaintiff was advised to continue drinking. However, as noted by Associate Professor Young, at the time of each cycle, the plaintiff was given 500 ml of saline intravenously. Coupled with the advice of Ms King to drink two litres of water per day throughout the whole of the treatment, I did not consider it significant that the plaintiff might have refrained from taking liquid for a short period after the administration of the second cycle.

186 I rejected the claim that the plaintiff was not informed or not adequately informed of the requirement for hydration.

ISSUE 3 – DAMAGE AND LOSS

187 The plaintiff claimed damages for injuries for physical and psychological injuries. She claimed to recover damages for attendant care needs met on a voluntary basis in the past and for those to be met on a commercial basis in future.

The nature of the injuries

188 The plaintiff said that prior to her treatment by the defendants she lead an active life, having interests in photography, reading and sport. She said she was fit, health conscious and energetic. She lived each day to the full.

189 She agreed with medical records that indicated that she consulted doctors in relation to urinary incontinence and depression prior to developing her illness. She said the incontinence was minor in nature and that the depression related to relationship difficulties with her former partner.

Physical injuries

190 There is no doubt that chemotherapy and radiotherapy can be painful and distressing treatment regimes that are accompanied by significant side effects. Clinical records of those treating the plaintiff during the course of her treatment and for a lengthy period after its conclusion indicated that she suffered high levels of pain discomfort, including lengthy periods where she was bedridden.

191 The plaintiff complained of hair loss, nausea, xerostomia or dryness of the mouth, disturbed vision and hearing loss. She lost weight and was disinclined to eat. She claimed that radiotherapy caused her to lose more weight and to eat even less. Her total weight loss over the period of treatment she estimated to be 20 kilograms. These were side effects of her treatment from which she agreed that she recovered.

192 The plaintiff also stated that her general level of fitness was low and that she was without energy. She exercised minimally. Her daily recreational activities were reading and staying in contact with friends through email.

193 The most significant physical injury claimed was injury to the plaintiff’s bladder as a result of the administration of cyclophosphamide and radiotherapy. It was claimed that this injury resulted in ongoing chronic pain and discomfort as a result of the contraction of haemorrhagic cystitis, dysuria, nocturia, haematuria, urinary frequency, incontinence and urinary tract infections.

194 The plaintiff claimed that, after the course of radiotherapy, she suffered occasional incontinence of the bowel, adding to her difficulties. Her overall illness and weakness increased and she needed a wheelchair and walking frame for about one year.

195 Her left leg developed symptoms of pain and swelling after chemotherapy that continued to trouble her. Both legs became swollen if she was required to walk for longer than 10 to 15 minutes. She suffered from extreme cold in both feet.

196 The plaintiff also claimed that a result of the misdiagnosis and treatment she suffered from ongoing physical weakness, chronic pain and discomfort and from an increased risk of secondary cancers as a result of the chemotherapy and radiotherapy.

197 She continued to need medication for pain relief, depression, the swelling in her leg, to assist her to sleep and to treat bowel incontinence and antibiotics to deal with ongoing urinary tract infections. She used incontinence pads on a constant daily basis, receiving an allowance to assist with their cost. On occasions she wore a pressure stocking on her left leg. She agreed that she did this on the advice of her doctors to avoid the development of a further deep vein thrombosis. She wore multiple socks on her feet in an effort to keep them warm.

198 The condition haemorrhagic cystitis was described by Dr Vaughan as follows:

Haemorrhagic cystitis is bleeding from the urinary bladder caused by damage to the lining of the bladder or the transitional epithelium.

Symptoms include dysuria or painful urination, haematuria and irritative voiding symptoms. ^liv

199 The medical experts accepted that, although uncommon, high doses of the drug cyclophosphamide can damage the bladder and that the damage can be aggravated by radiotherapy. It was accepted that this damage can lead to haemorrhagic cystitis.

200 Clinical notes confirmed that the plaintiff did in fact develop this condition. The first defendant conceded that it was probably the result of the administration of cyclophosphamide, although the doses were reduced in the plaintiff’s case and he had not experienced this condition occurring in any other patient.

201 The defendants questioned whether the plaintiff continued to suffer from haemorrhagic cystitis or other symptoms of bladder damage and whether she failed to mitigate her loss by refusing treatment that could provide some relief to her symptoms.

202 The first defendant referred the plaintiff to Dr O’Neill, urological surgeon, in April 2005 for consultation concerning the treatment of her condition. On consulting Dr O’Neill she complained of dysuria, frequency and constant bladder discomfort. Dr O’Neill reported that there was little that he could offer the plaintiff except a suprapubic catheter that she did not wish to accept that that stage. The plaintiff declined cystoscopy proposed for diagnostic purposes only. Dr O’Neill thought her rejection of a left ureteric stent was reasonable since the kidney was functioning normally.

203 The plaintiff consulted Dr O’Neill again in November 2008. He noted that he was amazed^lv at how well she looked on this occasion. Her symptoms at that stage were reported to be recurrent urinary tract infections, frequency, urgency and flooding on change of posture, with increasing pain and haematuria with infections. Dr O’Neill stated that he wished to investigate the exact cause of the plaintiff’s symptoms but she was not prepared to undergo vaginal examination, cystoscopy or urodynamics study. Without this investigation, he said, nothing could be done.

204 In August 2005 the Department of Palliative Care at the Prince of Wales Hospital reported to Dr Lindeman that the plaintiff’s main issue was her continuing cystitis with occasional haematuria, frequency, urgency, severe dysuria and incontinence^lvi.

205 The plaintiff was referred to Dr Ainsworth by Dr Jane Morgan, her Newcastle general practitioner, in May 2006. He recorded symptoms of pain, frequency and intermittent bleeding as well as recurrent infections. Dr Ainsworth was concerned to exclude transitional cell carcinoma as a cause of her symptoms. The plaintiff returned to Dr Ainsworth in November 2006, having put off the follow up appointment for some months. He suggested that the plaintiff undergo cystoscopy and retrograde study to confirm that there was no other cause for her condition. He proposed to consider treatment options after the cystoscopy. The plaintiff declined to proceed with the cystoscopy.

206 In October 2007, Dr Deveridge reported that the urinary frequency and dysuria were slightly improved. In August 2008, at a time when the blood count was completely normal and there was no evidence of lymphadenopathy, Dr Deveridge suggested that the plaintiff consult Dr Jane Manning, a specialist in urological gynaecology. There was no evidence that the plaintiff acted on this suggestion.

207 An intravenous pyelogram (IVP) undertaken in November 2006 reported that the bladder was asymmetric in shape with evidence of wall thickening suggestive of cystitis.

208 Clinical notes^lvii up to January 2008 of the Newcastle general practitioner, Dr Jane Morgan, were in evidence. The last reference in those notes to urinary tract infection appeared to have been made in May 2006.

209 Associate Professor Young reported that haemorrhagic cystitis in most cases resolved with healing. He accepted that a small proportion of patients who suffered from the condition continued to experience haematuria. They were also likely to suffer urinary tract infection resulting from damage to the bladder, as well as nocturia and frequency.

210 Dr Katelaris was asked to examine the plaintiff on behalf of the defendants in June 2008. The plaintiff told him that she was incontinent day and night, that she used four large incontinence pads over a 24 hour period and that they were saturated day and night. She complained of urgency, urge incontinence and stress incontinence. As a consequence of the plaintiff’s refusal to undergo the investigations that Dr Katelaris considered were essential to diagnosis and treatment, he reported that he could not objectively verify her condition, whether she was wearing an incontinence pad or whether her skin had the stigmata of chronic urinary incontinence. He noted particularly that the plaintiff received half the usual dose of cyclophosphamide and that she had never allowed appropriate investigation of her claimed bladder symptoms. He recommended investigations be undertaken so that a proper urological opinion could be given.

211 In his evidence to the court Dr Katelaris stated that from her reported symptoms, including the extent of her incontinence, it appeared that the plaintiff suffered from disabling urinary incontinence by which he meant that patients with this condition:

…clamber for treatment, they smell, their family complain about them, their self esteem plummets, they avoid socialising, you know, it’s often said that the grossly incontinent patient has a greater disability than somebody with a broken leg. They definitely seek treatment. ^lviii

212 Dr Katelaris said cystoscopy and a urodynamics study were low key, low risk examinations that yielded significant clinical information in determining whether the plaintiff had chemically induced cystitis. He rejected propositions put to him that pathology results in August 2004 were indicative of chemically induced haemorrhagic cystitis. He said the results were consistent with both infective and chemically induced cystitis. He emphasised that all of the medical material dealing with this condition was based on the plaintiff’s own reports of symptoms rather than the results of objective investigation. He did not accept that the findings of the IVP supported the diagnosis of chemically induced cystitis in the plaintiff and noted that the radiologist recommended cystoscopy to determine the cause. He said the condition of the bladder as reported following the IVP could have been the result of the left pelvic mass. He considered that a feature pointing against haemorrhagic cystitis was that the plaintiff had not been admitted to hospital on multiple occasions with heavy bleeding to the point where catheterisation and washing out of blood clots from the bladder was required.

213 Dr Katelaris agreed that one solution for the plaintiff was surgery to provide for ileostomy, so that urine was diverted into a bag applied to the anterior abdominal wall. He accepted that this was major surgery with potential risks of infection and thrombosis. He said other potential solutions were available that involved more minor surgery or drug therapies, depending upon investigation and identification of the precise reason for her symptoms.

214 On the topic of urinary tract infections, Dr Katelaris noted that the clinical notes of Dr Morgan and Dr Ainsworth referred to the plaintiff’s reported symptoms of infection but they did not record recurrent positive urine cultures.

215 The plaintiff also claimed to suffer from physical weakness and chronic pain and discomfort, fatigue and lethargy, back and left leg pain, cold feet, and poor sleep. Although there were clinical notes indicating that the plaintiff suffered from a number of these symptoms during the period of her recovery from treatment, there was little by way of objective medical evidence to support the claim that they were the result of the treatment or that they remained significantly disabling.

216 There was no report from Dr Morgan, the current general practitioner. Copies of some of Dr Morgan’s correspondence indicated that her main concern was the plaintiff’s psychological response to her deteriorating relationships with her daughters and to her belief that she had been misdiagnosed and inappropriately treated.

217 Reports of improvement in the plaintiff’s physical condition by 2008 came from two sources. Dr O’Neill’s amazement at the improvement has already been noted. Ms McMaster, occupational therapist, provided a significantly different description of the plaintiff upon her observation in June 2008^lix to that of Ms Walker who reviewed her in September 2007^lx. These observations are dealt with in greater detail when assessing the claim for attendant and domestic care.

218 There was evidence to support the claim that chemotherapy and radiotherapy increased to a slight degree the risk of secondary cancers. Associate Professor Young stated that this risk already existed as a feature of CLL. Dr Katelaris stated that in some circumstances cyclophosphamide could result in cancer of the bladder.

Psychological Injury

219 The plaintiff complained of a psychological reaction to the diagnosis of a terminal illness and the treatment she received as a consequence of that diagnosis. She claimed that she suffered stress, depression, emotional reaction and damaging consequences to her relationships, particularly with her two daughters. These reactions were said to have been aggravated upon the discovery that the diagnosis was incorrect and the treatment unnecessary.

220 In response to her psychological reaction, the plaintiff consulted psychiatrist, Dr Parker, on one occasion. She did not continue with treatment because, because she did not consider that her condition would improve and she felt there was little to be gained from it. She also consulted a psychologist for a number of sessions but ceased this treatment because she ran out of things to say and she thought she was no longer receiving a benefit from it. No reports from these practitioners were in evidence.

221 The plaintiff and Ms Symons-Vaughan stated that the first defendant told the plaintiff that she had six months to live. She claimed that, having been told that she had six months to live, she wanted to sell the house in which she lived with her former partner so that she could decide how her share of the proceeds were to be dealt with on her death.

222 She continued to believe that her life expectancy was poor. She told Ms McMaster, occupational therapist, that she did not expect to be alive in five years time because her risk of secondary cancer was greatly increased.

223 Asked to recall the first defendant’s actual words concerning her life expectancy, the plaintiff said:

Look the words that I’ve already said, that if it’s Richter’s transformation, that I would probably only have about six months to live, that it was incurable. ^lxi

224 The first defendant was doubtful that he told the plaintiff that she had only six months to live, stating that it was not the sort of statement he would make. He believed that he would have referred to the median for survival which covers a wide range of possibilities between one month and five years. He said it was common for patients to misunderstand a statement to the effect that the median survival was six months and translate it to mean that they have only six months to live.

225 On 29 July 2004, in response to their request, the first defendant wrote^lxii to Steinfeld & Associates, solicitors, acting on the plaintiff’s behalf stating:

Cary has a malignant lymphoma which may have transformed from an earlier chronic lymphocytic leukaemia. … It is difficult to give an estimate of her life expectancy but it would likely be short. The response to the current chemotherapy will be a useful guide but this type of transformation has an average life expectancy of 6-12 months.

226 Dr Phillips in February 2006 recorded^lxiii the plaintiff’s ongoing symptoms, including depression with occasional suicidal thoughts. He administered psychological testing from which he recorded elevated scores for severe depression and anxiety. On the information provided to him, Dr Phillips reported that the plaintiff moved from a state of apparent good psychological health prior to 2002 to a state of impaired psychological health when he examined her in February 2006 with a significant level of invalidism. He diagnosed a dysthymic disorder with symptoms of depression, altered appetite, sleep disturbance, low energy, low self-esteem, feelings of hopelessness, chronic symptoms and clinically significant distress and impairment across the major domains of life. Dr Phillips’ opinion was that the plaintiff would probably require anti-depressant medication indefinitely and treatment with cognitive behavioural psychotherapy.

227 Dr Brown examined the plaintiff in May 2008. She described the plaintiff as not appearing to be obviously depressed or anxious, although at times she appeared disgruntled when talking of her perception that she received sub-optimal medical care.

228 Dr Brown diagnosed a mixed anxiety/depressive disorder resulting from chemotherapy and radiotherapy and the plaintiff’s perception that the treatment was unnecessary. She noted that there were other features that arose both before and after this medical treatment that rendered the plaintiff vulnerable to or aggravated the disorder. Dr Brown noted that there had been gradual improvement in the plaintiff’s overall physical health so that her psychological symptoms were diminished to a mild level although she continued to meet criteria for a mild chronic adjustment disorder or a mild major depressive disorder. She agreed with Dr Phillips that the plaintiff required psychotherapy and further psychological counselling.

Care

229 The plaintiff relied upon the material provided in the report of Ms Walker to support her claims for extensive attendant and domestic care, past and future. She claimed that she required full time care throughout and after her treatment up to the time when Ms Walker interviewed her in September 2007. She said that she was mostly bedridden and incapable of doing anything for herself, leaving her home only to attend medical appointments.

230 Ms Symons-Vaughan lived with the plaintiff in Sydney and provided this care until she married in March 2006. Ms Symons-Vaughan gave detailed evidence of the type of care provided during that period. After her marriage her carer’s pension was stopped and she was forced to return to paid employment but she continued to provide care outside working hours and at weekends. The plaintiff’s younger daughter and former partner provided the balance of her care.

231 In September 2007 the plaintiff reported to Ms Walker significant disabling pain in her bladder, legs and low back with resultant limits on her physical capacity. Ms Walker concluded that the plaintiff’s ability to perform aspects of her personal care was jeopardised by her pain and fatigue. She therefore recommended regular personal care assistance. She recommended that the plaintiff consult a continence nurse for advice and costings of suitable products. She also accepted that significant levels of care had been provided in the past by the plaintiff’s family, in particular Ms Symons-Vaughan, and recommended substantial provision be made for future care on a commercially costed basis.

232 The plaintiff said that from the end of September 2007 her condition improved gradually so that by the time of her interview by Ms McMaster in June 2008 she was more mobile, requiring less care and fewer aids. Her current needs, she said, were for assistance with driving, shopping and evening meals. Those needs were still provided by her younger daughter and former partner. The plaintiff estimated the time involved at one and one half or two hours per day.

233 Ms McMaster visited the plaintiff in June 2008 and observed the plaintiff performing a number of movements in order to assess her functional capacity. She provided photographs of the plaintiff undertaking some of these movements in her report. She reported that the plaintiff informed her that she undertook general housework and that she was independent in all her personal care tasks of eating, grooming, showering, dressing, toileting and medicating. She used a shower chair. She relied on her former partner or daughter for transport, although she acknowledged that she now had the capacity to drive if necessary.

234 Ms McMaster dealt only with the plaintiff’s future needs. She concluded that she could not identify any current physical impairments or functional restrictions that prevented the plaintiff from carrying out her normal daily activities or domestic tasks. Ms McMaster described the plaintiff in the following terms:

She walked with a normal gait pattern at a normal pace. She was dressed casually wearing socks and slip on slippers on her feet. ^lxiv
…
There were no behaviours present consistent with physical discomfort or distress.

Her affect appeared normal. ^lxv

235 Ms Walker, asked to comment on Ms McMaster’s report, stated^lxvi that it indicated that the plaintiff had improved. She noted that the report contained minimal reference to symptoms of incontinence and pain causing functional difficulty. Ms Walker accepted that the reported indicated that the plaintiff was currently largely independent of her family and stated that she was unable to comment further in the absence of further review of the plaintiff. There was no evidence that a further review was undertaken by Ms Walker.

ISSUE 3 - FINDINGS

Physical injuries

236 I accepted that the plaintiff suffered from haemorrhagic cystitis following her treatment and that she developed this condition as a result of chemotherapy.

237 Various clinical notes and reports of treatment extending to 2006 indicated that the plaintiff was treated for haemorrhagic cystitis at least until the end of 2006. The IVP of November 2006 reported findings consistent with damage to the plaintiff’s bladder.

238 Regretfully the plaintiff has declined medical investigation that could objectively establish the cause and extent of ongoing symptoms since that date.

239 In the absence of appropriate medical investigation of the plaintiff’s condition, the plaintiff faced the following problems in establishing her claim of continued debilitating symptoms of haemorrhagic cystitis:

1 Dr Katelaris noted that the findings of the IVP were open to interpretation and that they could be the result of infective cystitis, chemically induced cystitis, carcinoma or a consequence of the original mass. Dr Ainsworth also stated that he wished to investigate the prospect that the plaintiff’s condition could be cancer related.

2 There was only one report of admission, in August 2004, to hospital with symptoms of haemorrhagic cystitis and the need for blood transfusion. In September 2004 the plaintiff was admitted to hospital for blood transfusion. It was not clear whether these admissions were related to haemorrhagic cystitis.

3 Thereafter medical records referred to occasional haematuria only.

4 Associate Professor Young expressed the opinion that most cases of haemorrhagic cystitis healed.

5 The plaintiff rejected treatment that was available for a condition that she claimed was highly disabling as well as socially disruptive. The treatment did not necessarily involve an ileostomy bag, a solution that was unacceptable to the plaintiff.

6 There was no recent objective clinical record of complaints of recurrent urinary tract infection or positive urine cultures.

7 Reports of Dr O’Neill and Ms McMaster indicated a significant improvement in the plaintiff’s condition by 2008.

8 My lack of confidence in the plaintiff’s credit.

240 I find that the plaintiff’s bladder was chemically damaged by the drugs administered during chemotherapy so that she continued to suffer from occasional episodes of cystitis with accompanying episodic incontinence.

241 I was not satisfied by the evidence that the plaintiff continued to suffer from haemorrhagic cystitis.

242 There was no evidence to connect the plaintiff’s complaints of leg and back pain to the chemotherapy or radiotherapy treatment provided.

243 There was evidence to support the contention that chemotherapy could increase the risk of developing secondary cancers.

Psychiatric injuries

244 I was again hampered by the absence of evidence from treating medical practitioners to support the plaintiff’s claims of psychiatric injury.

245 I accepted that in all probability the plaintiff suffered psychiatric and emotional reactions to the diagnosis of which she was advised by the first defendant. I do not doubt that she believed that her life expectancy was short term with the result that she suffered the symptoms described by Dr Phillips and that those symptoms were exacerbated by her belief that her condition was misdiagnosed and her treatment unnecessary.

246 However, consistent with the improvements reported by Dr O’Neill and Ms McMaster, Dr Brown reported improvement in the plaintiff’s mental state to the point where by 2008 she was suffering from mild levels of adjustment and depressive disorders.

247 I find that the plaintiff continued to suffer from adjustment and depressive disorders that were mild in their intensity.

Extent of Injuries

248 The result was that I assessed the plaintiff on the basis that she suffered significant and intense physical and psychiatric symptoms during the period of treatment and thereafter for a period up to 2007.

249 I find that the plaintiff’s condition improved.

250 In assessing the plaintiff’s claim for general damages, I made allowance for the vulnerability to urinary tract infection resulting from the damage to her bladder indicated by the IVP.

251 I also took into account a degree of general physical weakness resulting from the chemotherapy and radiotherapy, the ongoing mild psychiatric symptoms and the increased susceptibility to secondary cancers in arriving at an assessment of the plaintiff’s damage at 35% of a worst case.

Care

252 I was satisfied that the plaintiff required and was provided gratuitously with care by her family.

253 I assessed the allowance for this care as follows:

Until 31 March 2006 a requirement of 40 hours per week at the appropriate rate.

From that date a requirement on a diminishing basis of an average of 20 hours per week at the appropriate rate until 31 August 2007.

From that date on a further diminishing basis of an average of 7 hours per week at the appropriate rate to the date of judgment.

254 For the future, the evidence indicated that the plaintiff’s needs will be relatively modest. I accepted that she could not rely upon her family indefinitely to undertake heavier aspects of her domestic care. I did expect that her family would continue, on a gratuitous basis to attend to her transport requirements, although I noted that the plaintiff told Ms McMaster that she could now drive a vehicle. I assessed her future needs at 3 hours per week at the appropriate commercial rate.

Out of Pocket Expenses

255 A revised schedule of damages^lxvii set out the agreement of the parties that out of pocket expenses had been incurred to a value of $21,976.04. This figure included the costs relating to the provision of a wheel chair.

256 The defendants disputed the plaintiff’s claims for the costs of incontinence pads, socks and morphine lollipops. The defendants pointed out that, not only was there little evidence to support the claimed medical conditions for which they were said to have been provided, there were no receipts in evidence for these items.

257 There was evidence of the use of incontinence pads up to the date of the visit by Ms Walker to the plaintiff’s home in September 2007. There was no evidence to support the plaintiff’s claim that she used them on a 24 hour, rather than an intermittent basis. Notwithstanding the non production of receipts for these items, I considered that it would be appropriate to allow this expense to the end of 2007, discounting the amount claimed to allow for intermittent use. The amount allowed was $3,000.

258 In the absence of evidence that socks were required as a consequence of the treatment, the claim for their cost was rejected.

259 In the absence of evidence that morphine lollipops were purchased, the claim for their cost was rejected.

260 For the future the plaintiff claimed for the cost of cognitive behavioural therapy and psychological therapy as recommended by Dr Phillips and Dr Brown. The difficulty with this claim was that the plaintiff stated that she did not consider that she needed this treatment. She did not continue with the treatment available from Dr Parker or from the psychologist. There appeared to be little purpose therefore in making allowance for this expense.

261 I was not satisfied that there was a requirement for review by a continence nurse or by an occupational therapist and no allowance was made for these expenses.

262 I was satisfied of the requirement for medication to treat the plaintiff’s psychological condition. I allowed the amount claimed of $9,485.88 to meet this expense.

263 The plaintiff conceded that she was able to drive herself but I have already noted that I expected her family to continue to assist her with transport. I allowed $10 per week or $8,220 for their motor vehicle expenses.

ORDERS

264 Verdict for the defendants.

265 The plaintiff is to pay the defendants costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument if required.

266 The exhibits will be retained for 28 days.

267 My reasons are published.

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Exhibit B2.361

Exhibit B1.161

Exhibit B1.160

Exhibit B2.388

Exhibit B1.162

Exhibit B1.164

Exhibit B2.392

Exhibit B2.363

Exhibit B2.232

Exhibit B2.236

Exhibit B2.252

Exhibit B1.167

Exhibit B2.256

Exhibit B2.365

Exhibit B2.413

Exhibit B2.408

Exhibit B2.414

Exhibit B1.170

Exhibit B2.366

Exhibit B1.171

Exhibit B1.172

Exhibit B1.175

Exhibit B2.369

Exhibit B2.371

Transcript 20.5.09, p7.5

Transcript, 2.4.09, p276.42

Transcript, 20.5.09, p20.42

Transcript 20.5.09, p.7.4

Exhibit B2.238

Exhibit B2.252

Exhibit 1a.125

Exhibit 1a.186

Exhibit B2.438

Exhibit B2.439

Transcript 18.5.09, p88.44

Exhibit B1.178

Exhibit B1.173

Exhibit B1.174

Exhibit B1.176

Exhibit A1.178

Transcript 1.4.09, p135.45

Transcript 1.4.09, p148.45

Transcript 31.3.09, p85.39

Transcript 2.4.09, p216.42

Transcript 19.5.09, p56.29

Exhibit 6

Exhibit 1b.403-404

Transcript 19.5.09, p88.45

Exhibit 1b.781-788

Transcript 2.4.09, p248.29

Transcript 3.4.09, p56.45

Exhibit B2.254

Exhibit 1b.778

Exhibit B1.44

Exhibit B1.200

Exhibit B1.181

Exhibit B2.456

Transcript 19.0.09, p59.27

Exhibit 1a.249

Exhibit B1.71

Transcript 31.3.09, p89.6

Exhibit B1.169

Exhibit B1.127

Exhibit 1a.252

Exhibit 1a.253

Exhibit B1.125

Exhibit A

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