Tai v Hatzistavrou

[1999] NSWCA 306

CITATION:	Tai v Hatzistavrou [1999] NSWCA 306
FILE NUMBER(S):	CA 40134/97
HEARING DATE(S):	9 April 1999
JUDGMENT DATE:	25 August 1999
PARTIES :	William Tai V Barbara Hatzistavrou
JUDGMENT OF:	Priestley JA at 1; Handley JA at 96; Powell JA at 97

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5329/95
LOWER COURT JUDICIAL OFFICER:	His Honour Acting Judge Williams

COUNSEL:	Appellant - A.J. Sullivan QC / Miss L. McCallum / B. Zipser Respondent - C.E. O'Connor QC / T.F. McKenzie
SOLICITORS:	Appellant - Corrs Chambers Westgarth Respondent - Photios Vouroudis & Co, Burwood
CATCHWORDS:	Action in District Court for professional negligence against specialist gynaecologist
CASES CITED:	Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Battersby v Tottman (1985) 37 SASR 189 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 AER 118 E v Australian Red Cross (1991) 27 FCR 310 F v R 33 SASR 189 Forman v Pilsbury 733 F.Supp 14 Giurelli v Girgis (1980) 24 SASR 264 Gover v State of South Australia (1985) 39 SASR 543 Kalokerinos v Burnett (CA 30/1/96, unreported) Kite v Malycha (1998) 71 SASR 321 Maynard v West Midland Regional Health Authority [1984] 1 WLR 634 O'Brien v Wheeler (CA, 23/5/97, unreported) Rogers v Whitaker (1992) 175 CLR 479 Samios v Repatriation Commission [1960] WAR 219 Sidaway v Governors of the Bethlem Royal Hospital [1985] AC 891 Thomsen v Davison [1975] Qd R 93 Whitehouse v Jordan [1981] 1 WLR 246; [1981] 2 AER 267
DECISION:	Appeal dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40134/97
DC 5329/95

PRIESTLEY JA
HANDLEY JA
POWELL JA

Wednesday, 25 August 1999

TAI v HATZISTAVROU


PLAINTIFF’S ACTION IN DISTRICT COURT FOR PROFESSIONAL NEGLIGENCE AGAINST SPECIALIST GYNAECOLOGIST - plaintiff the defendant’s patient for twelve years - regular checkups for cancer - defendant advises plaintiff to have precautionary operation - defendant asks plaintiff to arrange time for operation with hospital - plaintiff lodges request for admission form - in ordinary course hospital would have fixed date for operation within about two months and notified plaintiff - hospital did not notify plaintiff of any operation date - operation eventually done and cancer discovered about five or six months later than it would have been if done when originally intended - defendant had not made any enquiry about the plaintiff not being scheduled for operation in accordance with his advice - defendant had no follow up system for such eventualities - cancer would have been discovered by the earlier operation had it been done - plaintiff suffered damage by delay - trial judge finds defendant liable.
On appeal, held: trial judge was correct - defendant failed in his duty to the plaintiff to take reasonable steps to see that the operation he thought necessary in plaintiff’s interest was carried out.
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Battersby v Tottman (1985) 37 SASR 189
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 AER 118
E v Australian Red Cross (1991) 27 FCR 310
F v R 33 SASR 189
Forman v Pilsbury 733 F.Supp.14
Giurelli v Girgis (1980) 24 SASR 264
Gover v State of South Australia (1985) 39 SASR 543
Kalokerinos v Burnett (Court of Appeal, 30/1/96, unreported)
Kite v Malycha (1998) 71 SASR 321
Maynard v West Midland Regional Health Authority [1984] 1 WLR 634
O’Brien v Wheeler (23 May 1997, unreported, Mason P, Powell and Stein JJA)
Rogers v Whitaker (1992) 175 CLR 479
Samios v Repatriation Commission , [1960] WAR 219
Sidaway v Governors of the Bethlem Royal Hospital [1985] AC 891
Thomsen v Davison [1975] Qd R 93
Whitehouse v Jordan [1981] 1 WLR 246; [1981] 2 AER 267


ORDERS

Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40134/97
DC 5329/95

PRIESTLEY JA
HANDLEY JA
POWELL JA

Wednesday, 25 August 1999

TAI v HATZISTAVROU

PRIESTLEY JA:
Introduction .

1 On 18 February 1997 Acting Judge Williams gave judgment in the District Court for the plaintiff before him, Mrs B. Hatzistavrou, for the sum of $56,267, against the defendant, Dr W. Tai, for damages for medical negligence. Dr Tai appealed to this court.
2 The basis of the trial judge’s decision was that he thought the defendant was to blame for delay in a diagnostic test of the plaintiff for cancer. When the delayed test was carried out it was found that the plaintiff had cancer. Had this test been carried out at the time when, in the trial judge’s view, the defendant should have taken steps to remind the plaintiff to have it done, the cancer could have been detected and treated at an earlier and less harmful stage. The defendant was held liable for the damage caused by the delay.

The facts .

3 The background to and the circumstances surrounding the delayed diagnostic test were as follows.
4 The defendant was a specialist gynaecologist. One of the places where he conducted his practice was in rooms opposite the Auburn District Hospital. He consulted there on Monday mornings, Wednesday afternoons and Friday mornings. He would see up to thirty patients in an afternoon (AB1/237 lines 8-15). He had an operating session at this Hospital on Monday afternoons. The Hospital’s booking clerk said he “usually ... had one major and probably three minor cases” a session (AB1/135 lines 38, 39) and “never had a very long waiting list” (AB1/130 lines 4,5).
5 The plaintiff first consulted him in his rooms at Auburn in 1980 when she was forty-three. A number of women in her family had died of cancer and she was anxious, if she herself were ever to contract it, that it should be found and treated early.
6 After the first consultation the plaintiff consulted the defendant frequently. For example she appears to have consulted him seven times in 1991 about her periods and episodes of flushing, and received medication. She had pap smears at least on an annual basis. Also throughout the time she was the defendant’s patient, she consulted him about frequent heavy bleeding. In 1983 and 1989 the defendant performed an operation called a D & C on the plaintiff at Auburn District Hospital. In one part of the appeal papers D & C is said to stand for dilatation and curette and in another part diagnostic curette. It is an operation which enables examination of the uterus and the taking of tissue for testing for signs of cancer. On each occasion before recommending the D & C the defendant had examined the plaintiff manually and was of opinion that there were no indications of cancer, but said the operations should be done as a precautionary measure.
7 The procedure for arranging the operations was that the defendant, who kept a pad of the Auburn District Hospital’s admission forms in his rooms, filled one in appropriately, and gave it to the plaintiff who took it over the road and left it with the Hospital’s booking clerk. The Hospital would soon afterwards place the plaintiff in the defendant’s operating list for one of his Monday afternoon operating sessions and write to the plaintiff telling her the date when she should go to the Hospital for the operation to be carried out. In both 1983 and 1989 this happened, and the operations were done within three weeks of the plaintiff’s handing in the form. No sign of cancer was found on either occasion.
8 Consultation 21 October 1992. By early 1992 the plaintiff had reached menopause. Then, in October 1992, she had bleeding, which she thought of as her period coming back. She went to her general practitioner, Dr Govindan, who wrote a referral for her to the defendant, dated 21 October 1992, “for routine gynaecological check up”. She saw the defendant on the same day.
9 According to the plaintiff, the defendant examined her internally and reassured her that everything was all right. She said he did not on that day suggest a D & C procedure, nor did he give her a form to take to the Hospital. This evidence is different from what is suggested by the defendant’s notes entered on the patient’s card for that day. These are in abbreviated and hard to read form, translated by the defendant at the trial as saying “Fluid in the knees. 3 months. Her last period February 92 and 2 weeks now. Her thyroid underactive. Oroxine 200 a day 100 micrograms. Abdomen soft, uterus retroverted, slight bleeding, D & C ADH plus hormone test” (AB1/205-6).
10 The defendant said in evidence that the note that the abdomen was soft meant that it felt normal, that the retroversion of the uterus was not a significant observation and that he had seen the slight bleeding through direct visualisation of the cervix using the speculum and a good light. The defendant had no independent memory of what was said at this consultation. His evidence was based on his notes and his regular practice.
11 He said that the note “D & C ADH” indicated to him “that I would have discussed the purpose of the diagnostic curettage with the patient, obtained her consent and handed the patient a form one she’s consented and filled in” (AB 1/207 lines 20 to 23).
12 A letter dated 21 October 1992 was in evidence (part of Exhibit E) to Dr Govindan which said:
“Many thanks for referring this patient to my rooms.

She came for a gynaecological check up.
On examination her abdomen was soft. The uterus was retro-verted and slightly bleeding.
Her name has been placed on the list for Dilatation and Curettage of the Uterus at Auburn District Hospital.
I have arranged for her to have Hormone Blood Tests, and a pap smear was taken. ”

13 The trial judge accepted the plaintiff’s evidence that she was not given an admission form on this day and said “although Dr Tai may have noted she was to have a D & C he has somehow overlooked giving her the form”. (The “may” in this finding is a little hard to understand, but does not matter so far as the appeal is concerned, because there was no challenge to these findings of fact.) The plaintiff did not have a D & C following this consultation.
14 Consultation 9 December 1992. The plaintiff consulted the defendant again on 9 December 1992. She said this appointment had been made at the 21 October consultation to see if the bleeding problem was going to rectify by itself. The defendant examined her again. Her evidence was that he said:

“ ... ‘Barbara I don’t suspect anything but it’s a routine you have to have a D and C’.

Q. And did he complete a form for you?
A. Yes.

...

Q. Were any of the dates discussed for the timing to have the D and C?
A. It was nearly Christmas and he says to “Barbara, no, not at Christmas time, it’s safer that you have to wait till they call you from the Hospital’.

Q. Was anything said to you at that time to alert you as to the possibility that you were a candidate at that time of having cancer?
A. No, again I told him and he says ‘How many times I’m going to tell you, you know, I’m here for you, there is nothing wrong with you. Don’t be afraid”.

Q. And what did you do with the form that Dr Tai gave you in December of 1992?
A. The usual, I took it across the road to the Hospital, Auburn Hospital in the admission office.

Q. When did you do that?
A. The same day that I went and saw Dr Tai. ” (AB 1/38-39)

15 It is common ground that the plaintiff did not consult the defendant again until 11 August 1993, following which a D & C was carried out. When asked whether following the consultation in December of 1992 she had continued to have any problems at all in terms of bleeding or difficulties she answered “I had the discharge, sometimes from one month to the other. A few times” (AB 1/39 lines 42-46).
16 In cross-examination the plaintiff said that she was quite positive that the defendant had said nothing about her having a D & C at the October visit. She had seen her general practitioner, Dr Govindan, between 21 October and before 9 December 1992 about other matters.
17 The defendant’s evidence of what took place in the consultation of 9 December 1992 was different in some ways from that given by the plaintiff. His translation of his handwritten note of that day was:

“ Arthritis of knees, Rachel Foster
Dr Richards, arthroscopy two weeks ago worse
Still taking Oroxine 200 micrograms 1 day. Spotting on and off. Did not give the form.
Atrophic genitalia plus constipation ” (AB/208 lines 44-48; 209 line 7) .

18 The defendant again said that he had no independent recollection of the conversation concerning the form. He said his note indicated to him that the patient did not hand the form into the Hospital (AB 1/208 lines 54, 55).
19 He said the words “Atrophic genitalia plus constipation” signified the result of his examination of the patient following visual inspection of the external genitalia and internal examination. In regard to the question whether the plaintiff had mentioned a discharge to him during the consultations either of 21 October or 9 December he said that he would have regarded such a reference as important and would have written it down had the patient told him about it (AB1/228-9).
20 The defendant said also that at the 9 December consultation he asked the plaintiff what happened to the form he gave her in October. He said he reminded her to take it to the Hospital.
21 There was evidence in the case about the way admission forms were laid out. There were three boxes beneath the heading “Priority”; one “Urgent”, one “Soon” and one “Routine”. The defendant said that on 21 October 1992 he had an opinion as to the appropriate priority for the D & C he then recommended to the plaintiff. The evidence proceeded:

“ Q. What was the opinion?
A. The opinion that this was a lady with post menopausal bleeding and that I did not find any abnormality on examination. Her pap smear was normal so I have to exclude malignancies from the upper genital tract and the only way to do that was to admit her to Hospital for diagnostic curettage.

Q. In terms of the priority to be allocated to the admission form, what was your opinion?
A. The opinion would be routine.

Q. When she returned in December, not having put the form in, as you say she told you, did you turn your mind again to the question of priority for the procedure?
A. Yes I did.

Q. What opinion did you form then?
A. Routine admission.

Q. Why?
A. Again because of her complaint and my absence of clinical findings.

Q. Which clinical findings are you referring to?
A. On the examination in December. I’m sorry, I haven’t got the notes.

Q. Might the witness have access to exhibit 3?
A. My findings on examination was atrophic genitalia and constipation.

Q. What did that indicate to you?
A. It indicated a loaded rectum.

Q. Sorry, constipation indicated a loaded rectum?
A. Constipation and –

Q. What about the first?
A. Atrophic genitalia indicated a post menopausal state.

Q. That’s what your notes say as to your examination on that occasion?
A. Yes.

Q. Apart from what is recorded in the notes as positive findings, is there any other aspect of your examination in December which contributed to your opinion that it was a routine admission?
A. Yes, if I had found anything out of the ordinary such as a lump or a pelvic mass I would have made a note of it and would have prioritised the urgency of the admission.

Q. When forming your opinion in December about it still being a routine admission did you take into account the plaintiff’s family history?
A. Yes I did.

Q. What was your knowledge at that stage of the family history?
A. My knowledge was that her mother has died of breast cancer and her mother’s sister has breast cancer and her sister has pancreatic cancer. ” (AB1/230-231)

22 Towards the end of the defendant’s evidence in chief there was an objection to the form of a question concerning the “usual formula” he would use to a patient after an examination of the kind he conducted on the plaintiff on 21 October and 9 December 1992. The trial judge short cut the argument about form (appropriately) by asking the question himself:
“HIS HONOUR: Q. Doctor, what do you usually say to patients after you’ve taken a history, performed an examination and come to an opinion where you think they should have a D & C?

A. Yes, your Honour I would have explained the reasons for bleeding at the menopause, as in Mrs Hatzistavrou’s case and that I have not found anything to alarm as my physical examination was normal. Her pap smear for detection of cervical cancer was normal, so I would have told her that just to exclude any possibility of a malignancy, we will have to admit her to a Hospital for a diagnostic curettage and a examination under anaesthetic. ” (AB1/233 lines 21-31)

23 The aspects of the defendant’s evidence above set out or summarised have been taken from his evidence in chief. They were not significantly affected in cross-examination. He was not shaken on the issue whether he had given the plaintiff an admission form to the Hospital on 21 October as he contended or not until 9 December as the plaintiff contended. Another matter of some significance was that it was put to him in cross-examination that at each of the two consultations the plaintiff had told him of discharge of blood but his reply was that her complaint had been that she had been spotting on and off and that he had not seen any bleeding in the consultation of 9 December (AB1/241).
24 He was asked why he had marked the admission form with the priority “Routine”, the least urgent of the three categories. His reason for this was that he had not had any positive findings in all the times that he had seen her (AB1/248 lines 21 and 22), this being a reference not only to the external and internal examinations he had carried out but also to the pap smears, blood tests and hormone tests.

Principal issues at trial .

25 At this point I reproduce two passages from the transcript of the proceedings at the trial which show what came to be the principal issues fought in the trial. The first passage relates to damages and came at the end of the evidence, when discussion was proceeding about how submissions were to be put to the court. Professor Tattersall had been the principal expert witness for the plaintiff. The trial judge said:
“... it just seems to me that the principal claim that the plaintiff’s making, if the plaintiff can establish negligence, as I understand it is, the only difference between the plaintiff’s situation now it’s suggested and what it might have been had it been detected earlier is the need to have operated on the bowel and they’ve done a colostomy, that according to Professor Tattersall, even if the situation had been detected in February or March 1993 the plaintiff would still have had to undergone a radical hysterectomy and six months chemotherapy, so that the only difference that may have been caused by negligence is the need to have the additional surgery in regard to the colostomy.

O’CONNOR: That’s right your Honour and the surgery in 1994, the laparotomy for that purpose. That’s so your Honour, that’s the plaintiff’s case and the out-of-pocket expenses associated with that procedure and the anxiety is part of it as well your Honour, which is consequent --
HIS HONOUR: Which would have to be –
O’CONNOR: -- on the colostomy bag, the wearing of that and the emotional effect on that.
HIS HONOUR: That’s right. Not consequence upon having to have a hysterectomy.
O’CONNOR: That will have obviously an impact, but the bag was obviously a very important part of the clinical picture post surgery/
HIS HONOUR: As long as I understand it, that’s what –
O’CONNOR: That’s the way we put the case, yes your Honour. ” (AB1/258-259)

26 The resolution of this issue thus became (more or less) common ground, on the basis of which the trial judge later assessed damages. No question about this was raised in the appeal.
27 The other passage comes from earlier in the hearing, when the defendant was being cross-examined. This passage reveals what became the principal issues on liability, and which were the subject of the appeal. The first issue was the adequacy of the defendant’s system of recording future operations at the Auburn District Hospital. The second was whether he had a responsibility to see why a patient did not attend for an operation.
28 The passage is as follows:

“ Q. Do you have any system at all in your office for checking up on patients whom have been booked in or put on waiting lists at the hospital to see whether or not their form has been processed or what the date they might be coming up?
A. I don’t have a general system, no.

Q. It would be very cheap, would it not, to have some sort of a diary of people you’ve booked in for surgery to look six to seven weeks ahead to see whether they’ve arrived on the list?
A. No, I don’t have that.

Q. It would be a very cheap system to have, wouldn’t it?
(No verbal reply.)

Q. What’s the answer, Doctor?
A. I don’t know what you mean.

Q. A system, a diary system for patients that you book in for surgery, to have a tickler system, a reminder system if they haven’t come up for surgery, that would remind you of that very fact, that they haven’t been treated or dealt with?

objection. legal argument. question rephrased.

Q. People, your patients, that as far as you’re concerned are on waiting lists for your surgery, it would be a simple system to have an additional diary that if they don’t come up on your operating lists within the average period of six to eight weeks to have a reminder system to say, ‘What’s happened to this patient? Booked her in or she was booked in some months ago or some weeks ago and I haven’t treated her,’ to instigate some inquiry as to why it’s so. That would be a simple system wouldn’t it?
A. It is my practice that once I fill in the form and the patient understands what the procedure is for, it is up - then up to the patient to follow through with the suggestion and application and this is my own way of ensuring the patient understands and accept the procedure to be done as recommended.

Q. So after you give them the form or send them across the road to the hospital, that’s the end of it, as far as you’re concerned, unless they come up on your operating sheet?
A. Yes.

Q. No system to remind you, at all, as their surgeon?
A. Apart from the history cards, no.

Q. I take it you had no resort to your history cards at all after December 1992 until you saw her again in August of 1993? Didn’t review her history at all or her cards?
A. That’s right. ” (AB1/247-248)

29 Although the trial judge found in favour of the plaintiff that, on the probabilities, she had not been given an admission form by the defendant on 21 October, he did not think the date on which the form was given to her was of great significance because, he said,
“In any event the expert medical evidence given during the trial suggests that any delay between 21 October and 9 December 1992 would have had little effect on the plaintiff’s subsequent prognosis.” (Reasons 4-5, AB2/536-537)
30 An unexpected development at the trial. The first day of the trial was 2 September 1996. It was during cross-examination of the plaintiff on that day (not then completed) that she said she had taken the admission form given to her by the defendant to the Auburn District Hospital on 9 December 1992. The cross-examiner had been careful to pave the way for a prospective later submission that the court should draw the inference that the plaintiff had never lodged the admission form. When the court resumed on 3 September 1996, the defendant’s counsel explained that she had been conducting the case on that basis, but in light of what had been so specifically said by the plaintiff, further investigations had been undertaken overnight from which it appeared that the Hospital had a computer record indicating that an admission form for the plaintiff from the defendant had been processed through the computer on 16 December 1992, that date being the date of the processing, not necessarily the date on which the form came into the Hospital. What appeared on the computer screen had not been able to be printed out and at the request of the defendant investigation had been undertaken by the Hospital to trace the actual form.
31 The defendant’s counsel said that her side had been taken by surprise by this new information from the Hospital, as a subpoena had earlier been served which would have caught any document relating to an October or December 1992 admission form, but in response to which no such documents had been produced.
32 The defendant’s counsel added that she was informing the court of these matters first to make it clear that the defendant would no longer advance a case that no form had been lodged by the plaintiff and second to get on record that if in due course the defendant sought to make a claim against the Hospital for contribution, no point could be raised against the defendant on the basis of authorities such as Port of Melbourne Authority v Anshun, (1981) 147 CLR 589, because through no fault of the defendant, the defendant had not had the necessary knowledge prior to the obtaining of this belated information from the Hospital.
33 The plaintiff’s counsel reacted to this information by seeking an adjournment for the purpose of preparing an application to add the Hospital as a defendant. The plaintiff also had served subpoenas which should have brought to light any admission form lodged by the plaintiff, but nothing had been produced. Counsel for the plaintiff said there would now seem to be a strong case to be made against the Hospital as it seemed there was no suggestion that the Hospital communicated with or wrote to the plaintiff following the lodgment of the form in December 1992. The defendant opposed the application for the adjournment. Amongst other things it was said “The plaintiff has its recourse against the Hospital down the track if the situation arises” (AB1/93 lines 22-23).
34 The trial judge (at that stage) thought it appropriate that the Hospital be joined so that the issues between the parties and the Hospital could all be determined in the one proceeding. He granted leave to the plaintiff to join the Hospital as a second defendant and to file and serve an amended statement of claim within seven days. He then stood the matter over for mention to determine the further direction of the matter.
35 The next proceedings of which there is transcript in the appeal papers took place on 11 December 1996 when separate counsel appeared for the Hospital, which had (temporarily) become the second defendant. Counsel mentioned that during the adjournment it had been drawn to the attention of the plaintiff that the plaintiff needed the court’s grant of an extension of time to commence proceedings against the Hospital, because of the three year limitation in the Limitations Act 1969. The plaintiff had accordingly filed a notice of motion for an extension of time. Two affidavits were filed on behalf of the plaintiff in support of the application, one by the plaintiff herself and one by her solicitor. Two affidavits were filed by the Hospital in opposition to the application, one by a solicitor and one by the person who had been the Hospital’s booking clerk at relevant times. All four deponents were cross-examined.
36 After addresses by counsel, the trial judge adjourned the proceedings to the next day for judgment. The reasons for judgment do not appear in the appeal papers but it is apparent that on the next morning, 12 December 1996, the application for extension was refused. The case proceeded with Dr Tai as the only defendant. Counsel for the plaintiff tendered the evidence in the application as evidence in the action itself (AB1/146 lines 51-54; AB1/259 lines 35-50).
37 Loss of admission form; plaintiff not written to. The evidence in the application established that the plaintiff had lodged a recommendation for admission form no later than 16 December 1992. It also established that the usual practice in regard to these forms was that they were filled out by the treating surgeon who nominated the priority with which the patient was to be treated. There was no record of the booking recorded on 16 December 1992 having been cancelled until November in the following year after the plaintiff had had her D & C in August. The container in which the physical form had been kept was last seen by the booking clerk at the beginning of 1996 but could not be found when asked for following the request in September 1996. It was also established that a recommendation for admission form lodged about 9 December 1992 marked with “routine” priority would, in the case of patients waiting for operation by the defendant, result in notification of a date “probably early/late February maybe ... perhaps even March ...” (AB 1/131 lines 7-10). The booking clerk was asked what the position would have been, following the lodging of the admission form in December if the fact was that the Hospital did not ring the plaintiff or write to her and the defendant did not cancel the operation. Her evidence was:

“ A. Well then her form should have been in the drawer and we should have given her a date.

Q. So it should have been there and kept reminding someone that this patient hadn’t been attended to?
A. That’s right and we should have given her a date that’s correct.

Q. Unless of course as happens from time to time in big organisations documents and forms get lost don’t they?
A. That’s correct.

Q. That has been your experience too from time to time?
A. That has happened yes. ” (Ab1/132 lines 17-31)

38 In the appeal it was agreed that it was common ground that the Hospital had not notified the plaintiff of any time to present herself for the D and C.
39 The plaintiff when cross-examined by counsel for the Hospital in the course of the extension application gave the following evidence:

“ Q. After you lodged your form in December 1992, you say you didn’t ever telephone the Hospital or go and see the Hospital between then and August?
A. No.

Q. You had some other medical procedures that you have mentioned in your evidence where you were going for some bladder infection, is that right?
A. Correct.

Q. Do you remember whether you decided to put off the procedure?
A. No way.

Q. Was there a problem about trying to fit in the procedure with Dr Tai and the treatment you were receiving for your bladder infection in January or February?
A. No.

Q. You put in your affidavit madam that you thought the delay was because of delay in the public Hospital system, do you remember –
A. Correct.

Q. Of course you had had D and C procedures by Dr Tai on two occasions before 1992 hadn’t you?
A. Correct.

Q. And the delay you had there was only a matter of weeks, is that right, from the time you were referred until you had the procedure?
A. Yes.

Q. Indeed in November 1992 you had some surgery upon your knee didn’t you?
A. Arthroscopy.

Q. Yes, what Hospital was that at?
A. Rachel Foster.

Q. You had - I think you have given some evidence of it - but from the time that the doctor said you had to go into Hospital for that arthroscopy, till the time you went in was only about a week wasn’t it?
A. It wasn’t for arthroscopy it was for some exercises, he told me to rest, that’s why my doctor recommended me to go to the Hospital.

Q. When you were at the Hospital you had the arthroscopy?
A. It was my decision. They said ‘Would you like to have an arthroscopy so we can see what’s wrong?’ and I said ‘Yes’.

Q. From the time you said ‘Yes’, till the time you had the arthroscopy was only about a week was it?
A. The doctor gave me straight away the form and I took with my admission when I was admitted at the Hospital I had the form with me.

Q. Was that about a week after you had discussed it with him?
A. Maybe, he told me, my doctor told me when to go to the Hospital.

Q. When you went in January 1993, the month after Dr Tai had suggested you need the D and C procedure, you got admitted for your bladder infection problem is that right?
A. I didn’t know it was bladder.

Q. But you were admitted to Hospital weren’t you?
A. Was at my request again.

Q. Yes and from the time you requested until you were admitted was only a matter of days wasn’t it?
A. Straight away again Dr Govendan told me to go to the Hospital, that same day.

Q. In November 1992 when you had your knee surgery and January 1993 when you had your admission to Hospital for the bladder problem, you knew, your experience had been, there was very little delay in being admitted to Hospital wasn’t there?
A. But it was, you know it was according to my doctor because he acted so quick.

Q. But your experience in relation to your knee and your bladder was that you got admitted to Hospital promptly?
A. Straight away, yes.

Q. Is it true to say that you thought the delay in your admission for the D and C was because of the delay in the public Hospital system?
A. Because my doctor confirm me that there nothing wrong with me, it didn’t seem to be urgent.

Q. So in your mind it didn’t seem to be urgent, so you didn’t see any urgency to get into Hospital, is that right?
A. Correct.

Q. But you knew, what I am saying to you, you knew from your experience with your knee in November 1992 and your bladder in January 1993 that you were getting admitted to Hospital quickly?
A. But again wasn’t it the doctors that he acted so quick.

Q. Yes but what I am asking you to turn your mind to, it is not really the case is it that you thought that there was a delay in the Hospital system in respect of your admission for the D and C procedure by Dr Tai?
A. Yes. I thought because it wasn’t urgent so I thought I had to wait. ” (AB1/109 line 26 to 111 line 18)

Further facts .

40 No contact between plaintiff and defendant. When the cross-examination of the plaintiff resumed in the action itself the plaintiff said that between about 9 December 1992 and July 1993 there was bleeding “a little bit” (AB1/157 line 15), “during that whole period it was spotting on and off” (AB1/157 line 17) and “at the end” she had a “discharge” “at the end of July” before she “had the heavy period” (AB 1/157 lines 6-34). This and further cross-examination on this point conveyed the distinct impression that from December 1992 until the end of July 1993 the plaintiff suffered only minor bleeding and discharge and that the extent of it did not concern her. She was being attended by Dr Govindan and specialists in other fields throughout this period. A cystoscopy was done by Dr Mitterdorfer to whom she did not say anything about bleeding or discharge. The last three questions and answers in the cross-examination were as follows:

“ In December 1992 you understood very well didn’t you that he was telling you, you have to have a D and C to exclude malignancy?
A. Yeah.

Q. In December 1992?
A. Correct.

Q. And just to be quite clear about it after you put the form in, in December 1992 you were expecting to hear from the Hospital were you not, not from Dr Tai?
A. Yes. ” (AB 1/160 lines 27-44)

41 The defendant’s position was as indicated in the passage from his cross-examination set out in par 28 above: he did nothing in regard to his patient; after he gave her the admission form on 9 December 1992 to take to the Hospital, his view was that there was nothing further for him to do; everything lay in the hands of the Hospital and his patient for her to present herself for the D & C.
42 Consultation on 11 August 1993 and subsequent treatment. On 11 August 1993 the plaintiff saw the defendant and told him of recent heavy bleeding. He said she had to have a D & C urgently. The recommendation for admission form signed by the defendant showed the priority as “Soon”. The D & C was performed on 23 August 1993 and almost immediately led to the discovery of cancer. Ovarian cancer which had spread to the uterus was diagnosed. This led to an operation by another surgeon, Professor Wong, who then took over the care of the plaintiff. He removed ovaries and uterus and inserted a colostomy. Subsequently the colostomy was able to be reversed.

Plaintiff brings action in the District Court .

43 The plaintiff commenced her District Court action on 26 July 1995.
44 The principal medical experts were Professor Tattersall, who, as already mentioned, gave evidence in the plaintiff’s case, and Professor Hacker, who gave evidence in the defendant’s case.
45 The trial judge found that there was no negligent failure by the defendant as at December 1992 to diagnose and treat ovarian cancer (reasons p 10; AB2/542 U-W). He also found on the basis of opinion evidence from Professor Tattersall that it was likely that an early D & C could have revealed evidence of cancer and that the plaintiff’s family history predisposed her to a greater risk of certain cancer than general members of the population.
46 The trial judge said, in this connection, that the opinion evidence of both Professor Tattersall and Professor Hacker was that it was not necessary for the defendant as at 9 December 1992 to regard the D & C procedure he was arranging for the plaintiff as more than a routine one. Although the trial judge expressed some doubt about these opinions he concluded that he was not sufficiently confident of the evidence to be able to be satisfied on balance that the delay from the procedure being treated as a routine one rather than a more urgent one was negligent (Reasons p 12; AB2/544 lines K-S).
47 A case of contributory negligence was raised by the defendant but the trial judge found against it. He accepted the plaintiff’s evidence about her reasons for not getting in touch with the defendant again until August 1993. No complaint about these findings or the dismissal of the contributory negligence defence was made in the appeal.
48 The damages assessed by the trial judge were on the footing indicated in the passage earlier extracted from the transcript, that if negligence was found against the defendant the only recoverable damage flowing from it was that due to the colostomy.
49 The passages in the trial judge’s reasoning critical to his conclusion that the defendant had been negligent were as follows:
50 He said:

“ that as at 9 December 1992, Dr Tai had a patient who had been bleeding since early October; who had a family history of cancer; who he knew had an over concern about or was cancer phobic; who was bleeding and the cause of which was as yet undiagnosed; other non-invasive tests having proved negative; who had been his patient for a very long time - almost ten years; who, when on two earlier occasions a D&C was recommended by him, had lodged the form with the Hospital and had the suggested procedure within weeks of the recommendation; who had always complied with suggested procedures and tests; who was by age and history more likely to develop cancer; and who came from a non-English speaking background (although she had a good command of English). Additionally all this needs to be looked at in the context of the fact that the earlier cancer is detected the better are the prospects for a patient in reducing the likelihood of the cancer metastasising.

It is my view that in those circumstances and probably in lesser circumstances, where a practitioner’s long standing patient has not appeared for a recommended procedure on the practitioner’s operating schedule after a reasonable time has elapsed, he or she has a duty to contact the patient to bring to the patient’s attention that she has not presented and advise the patient of the possible consequences of the failure to have the procedure carried out. There is no reason to think that such a process would create enormous practical or administrative difficulties for a doctor or be prohibitively expensive. A letter or telephone call would suffice. The problem could also be overcome by the practitioner explaining to the patient at the time of the consultation that the Hospital should be able to carry out the procedure within a specified time limit and that if this doesn’t happen then the patient should contact the practitioner or the Hospital. There is no suggestion by Dr Tai that he said this to Mrs Hatzistavrou at either relevant consultation and the plaintiff gives no evidence that anything like this was said to her.

When a practitioner commences the process for admission to Hospital to have a procedure carried out by filling out and supplying a patient with a RFA form and where the procedure recommended was one designed to exclude the possibility of a serious medical condition, I would have thought commonsense dictated that some inquiry be made as to what had happened to that process when the patient failed to appear on the operating schedule within an appropriate time.

It seems to me this is even more compelling a proposition when past experience has indicated that it was unusual for the patient not to have presented for such a procedure and perhaps of even greater relevance when there had already been confusion between doctor and patient as to the procedure being carried out from an earlier consultation and yet the symptoms were continuing. In hindsight perhaps Dr Tai acknowledged some fault in this regard when he made no apparent attempt to see how his patient was faring once she had been committed into the care of Professor Wong.

In my view the failure of Dr Tai to follow up Mrs Hatzistavrou in regard to her non-appearance on his operating schedule in December 1992 or January 1993 was negligent. The direct consequence of that was that the plaintiff did not see Dr Tai again until August 1993 when in addition to the radical hysterectomy she also had to undergo a colostomy with all its consequences. I find that it was probable that had the D&C been carried out in early 1993 it would have been likely to detect the presence of the ovarian cancer at a stage not requiring a colostomy. ”

The defendant’s argument in the appeal .

51 For the defendant it was submitted that the appeal raised two main issues. The first was said to be of considerable importance in the practice of medicine. The issue was said to be the extent to which a doctor or a specialist doctor had
“a duty to follow up to ensure a patient underwent an operative procedure when the doctor had given the patient the wherewithal to carry out and have that procedure arranged himself/herself”.
52 The second issue raised was whether there had been evidence upon which the trial judge could properly find that if the D & C procedure had been carried out in February or March of 1993 the cancer which was discovered in August 1993 would have reached the stage where it would have been discovered. For the defendant it was submitted that the evidence did not support this finding.

The duty issue .

53 For the defendant it was submitted, before coming to the question of duty by reference to the particular facts of the present case, that there was error in the judge’s approach to the case indicated by his reference to and apparent reliance on an unreported decision of this court, Kalokarinos v Burnett (Mahoney P and Clarke and Powell JJA, 30 January 1996) and by his reference to an analogy to the position of a solicitor who did not advise a client appropriately about the imminence of the expiration of a limitation period. I do not think that the trial judge’s references to these two matters either indicated or led to any error in his subsequent reasoning about the extent of the defendant’s duty on the facts of the present case.
54 I agree with the defendant’s submission to the extent that I think Kalokarinos is not of much help, as an authority, in the present case. There are some differences in the facts, and it was not a considered decision of the court on the question of the duty of a medical practitioner to follow up a recommendation for surgery. An issue at the trial in Kalokarinos was whether the plaintiff’s account of what happened at a consultation with her doctor should be accepted. The only point raised on the appeal was whether the trial judge was right in accepting the plaintiff’s account. This court made it perfectly clear that all it was considering was the attack in the appeal on the trial judge’s finding of fact. That attack failed and the appeal was dismissed.
55 There were however some features in the case relevant to the present. The defendant doctor conceded that if he had behaved as the plaintiff claimed he would have been in breach of duty. The case at least shows there is some medical opinion supporting a wider view of the content of a doctor’s duty to a patient than that contended for by the defendant in the present case. I do not think the trial judge in the present case treated Kalokarinos as in any way decisive or as binding him to reach the result that he did. He seems to me to have taken it as indicative but not conclusive, either in a factual or a legal sense.
56 Although it is not strictly relevant in the present case, because in the appeal no question is raised about contributory negligence, it also seems to me to be of some relevance to the general question raised by the defendant that the court in Kalokarinos overturned the judge’s finding that there had been no contributory negligence by the plaintiff and reduced the damages by twenty per cent. As this finding was the foundation of the court’s judgment about contributory negligence, the case is authority for the proposition that in some factual situations at least there will be what might be called “shared responsibility” of doctor and patient in cases of the present kind.
57 The solicitor analogy which the trial judge mentioned as possibly available, was that if a solicitor advises a client to commence proceedings which might soon exceed a time limitation but then does nothing to ensure that the client is made fully aware of the consequences if the client does nothing within the limitation period, the solicitor would be negligent. I do not think the facts and circumstances are sufficiently similar for the analogy to be of any real help. Nor however do I think the trial judge made use of the analogy in his reasoning. He was simply saying, as I understand him, that the analogy he mentioned was closer to the situation he was dealing with than was the competing analogy to which counsel for the defendant had referred before him.
58 What the trial judge did was to concern himself directly with the duty which, in his view, arose from the facts as he had found them.
59 In criticising the judge’s conclusion about the defendant’s duty, the submissions for the defendant emphasised the plaintiff’s part in not following up the appointment the defendant had told her to make. This tended to concentrate attention on the plaintiff’s fault in the matter. When, however, the question raised by the plaintiff’s case is recognised as being whether the defendant was at fault, it seems to me that the way in which the matter was put by the trial judge was persuasive. However, apart from Kalokarinos, which was not a case directly deciding the question of a doctor’s duty in circumstances analogous to the present, the trial judge referred to no court decisions relating to the duty. In view of the importance which the submissions for the defendant were stressing of the duty and the content of the duty to the practice of medicine generally, it seemed to me prudent to find out whether there had been other judicial decisions relevant to the question. Although counsel had told the court they had been unable to discover any reported decisions of relevance, other than Kalokarinos, the court requested further assistance from counsel on the matter of authorities and some were eventually made available to the court by written submission after the close of the oral argument.
60 Before mentioning the cases and the literature however, it is convenient to note the two main propositions on which the defendant’s submissions relied in regard to the duty issue. The first was based on what was said to be the policy underlying Rogers v Whitaker (1992) 175 CLR 479 and the second what was said to be the practical unreasonableness of the duty alleged against the defendant.
61 The first submission was that the imposition of the duty, or, more accurately, the identification of the content of the duty by the trial judge in the present case was inconsistent with the autonomy of the adult patient upon which the decision in Rogers v Whitaker was based. This court’s decision in O’Brien v Wheeler (23 May 1997, unreported, Mason P and Powell and Stein JJA) was referred to and the statement there by Mason P, with whom Powell JA had agreed, that the approach in Rogers v Whitaker
“... reflects the autonomy of the adult patient, who is regarded as having the right (if properly informed) to decide for himself or herself whether or not to embark on the procedure. An adult patient who is in a position to make a choice has the right to elect a surgical procedure which the hypothetical ‘reasonable’ person in his or her shoes would avoid, and to refuse a procedure which the hypothetical ‘reasonable’ person in his or her shoes would embrace.” (at 6)
62 Although the submission correctly states what Mason P said in O’Brien, a little more information about the case is needed to put it in perspective in relation to the present case.
63 O’Brien was, like Rogers v Whitaker, a warning case. The trial judge had held that the doctor’s warning to the patient had been deficient. Although that finding was questioned in the appeal, the question was not decided. The appeal was upheld in favour of the doctor on the ground that even if the doctor’s warning had been deficient the evidence had not established that had an appropriate warning been given the patient would not have undertaken the particular treatment or procedure. The case illustrates, what in any event seems quite clear, that there is no inconsistency between requiring that a doctor discharge the various duties to which he or she becomes subject in the course of any doctor/patient relationship and recognising the autonomy of the patient in decision making upon appropriate information. What was submitted on behalf of the plaintiff in the present case, in various forms, was that the defendant here had a duty to remind the patient of the advice that it was necessary for her to have a D and C procedure in order to eliminate the possibility of cancer. Such a reminder would not in any way entrench upon her right to decide whether or not she would undergo the procedure.
64 In my opinion the trial judge’s view that it was the legal duty of the defendant to remind the plaintiff of the need for a timely D and C procedure in no way cut across the patient’s autonomy and any rights the law recognises as bound up with that autonomy.
65 The second main argument on the duty question was that it was too onerous in practical terms to hold that the content of the duty included an obligation on the part of the defendant at the least to inquire why the plaintiff was apparently not taking his advice to have a timely D and C procedure. The trial judge’s reasons which have been set out above in my opinion give a quite satisfactory answer to this proposition. In the course of those paragraphs of his reasons the trial judge remarked that there was no reason to think that to have a system by which a patient would be reminded of the doctor’s advice and the reasons for following it “would create enormous practical or administrative difficulties ... or be prohibitively expensive.” On the materials in this case this seems to me to be a fair observation by the trial judge.
66 It had been suggested to the defendant in cross-examination that it would be very cheap to have a particular system which would be simple and effective. When asked whether the suggested system would not be a very cheap one, he did not reply (see par 28 above). When asked again, he said he did not know what the cross-examiner meant. There was no re-examination of the defendant on this point.
67 The court was thus left without any evidence from the defendant’s side to support a conclusion that the requirement of a reminder system would be unreasonably onerous upon the defendant. The evidence before the judge was that the defendant had one operating session at the Auburn District Hospital a week at which he usually had one major and probably three minor cases. Even if all his minor cases were D and C procedures, there would not be a great number to keep track of. In the absence of any facts or reasons (other than simple assertion) being advanced why it would be unreasonably onerous for a follow-up system to be put in place and operated by the defendant’s receptionist, I do not think the trial judge’s view on this point can be reasonably criticised.
68 In my opinion the two main arguments in the appeal against the trial judge’s conclusions on the content of the doctor’s duty to the patient fail.
69 The further researches done by counsel at the request of the court after the oral argument to my mind reinforce the correctness of the decision arrived at by the judge on the materials before him.
70 First, in a general way, material contained in International Medical Malpractice Law by Dieter Giesen (1998) pp 150 to 157 supports the trial judge’s position. At p 150 there is reference to Giurelli v Girgis (1980) 24 SASR 264 accepting a dictum by White J (at 270) that if there is a breakdown of communications between physicians and hospital departments owing to defects in their established procedures or to a lack of “feed-back” between them, then the patient should not suffer as a result. On the same page two cases are referred to, one from Australia (Samios v Repatriation Commission (1960) WAR 219) and the other from Canada, in which hospitals were held liable both for radiologists who failed to forward X-ray results and physicians who consequently misdiagnosed a dislocated shoulder and a dislocated wrist. Then (at 151) a Queensland case, Thomsen v Davison (1975) QdR 93, is noted, in which a pathologist to whom samples of blood and other specimens had been sent was held negligent for failing to take reasonable steps to ensure that the results were communicated to the referring physician. Then an English case is mentioned (also at 151) in which it was held negligent to fail to make adequate arrangements for a patient to report to the physician on developments in his condition after treatment.
71 The following passage then appears (at 152):
“A physician may expect his patient to co-operate in their common effort to restore the patient’s health and, thus, may normally also expect a patient to behave reasonably in, for instance, presenting himself for an agreed appointment, heeding an important warning, ... or returning for treatment or further checks as requested.” (Citations omitted)
72 The text then proceeds:
“however, a physician may not always be justified in relying on a patient to behave reasonably in following his instructions, and certainly not in cases where difficult instructions have to be heeded and dangerous procedures are to be tried.” (Citations omitted)
73 The text then refers to various examples where the medical practitioner’s duty continues notwithstanding that the patient would be expected to be anxious to co-operate.
74 These last two passages support the position taken by this court in Kalokarinos that responsibility for non-timely presentation may sometimes be shared between doctor and patient, but in doing so, also demonstrate the potential liability of the doctor.
75 It would seem that all of the cases referred to in the text are, to a greater or lesser degree, distinguishable on their facts from those in the present appeal. They appear however generally to support the view that, depending upon the precise facts of the relationship between the doctor and the patient, when a doctor is treating a patient for what may be a serious health problem, and the doctor thinks it necessary, even if only for prudential reasons, that the patient should submit to a particular surgical procedure, then the doctor has a continuing duty to advise the patient to submit to the surgical procedure, so long as the doctor/patient relationship is on foot. This does not mean that the doctor should seek to impose the doctor’s view upon the patient against the patient’s will, but it does mean that the doctor has a duty to keep the doctor’s opinion and advice before the attention of the patient so that the patient can decide upon the patient’s course in light of up to date knowledge of the doctor’s opinion.
76 This approach is supported by some observations in vol 1 of American Law of Medical Malpractice, by Pegalis and Wachsman, (1980), at pp 113 to 115, where it is pointed out that the relationship between doctor and patient, once established, cannot be ended at the mere will of the doctor but lasts until treatment is no longer required or the relationship is dissolved by consent or reasonable notice is given by the doctor to the patient so the patient may have an opportunity to engage the services of another doctor.
77 A point along these lines had been made on behalf of the plaintiff in the oral submissions in the present appeal although without any great emphasis being put on it as, in effect, a separate point. In the further written submissions the point was put more precisely and the position as stated in the text last referred to, adopted. The submission then continued that in the present case the relationship of patient and doctor continued between the plaintiff and defendant between December 1992 and August 1993, that it was at no stage terminated and that the defendant’s duty to ascertain the cause of the plaintiff’s post menopausal bleeding during that period continued, so that his failure to diagnose it until August of 1993 was a breach of his duty.
78 I am prepared to adopt this submission of the plaintiff. The approach seems to me to be reasonable.
79 The defendant’s further submissions drew the court’s attention to a case in the United States District Court for the District of Columbia, a first instance decision (on a post trial motion) handed down in 1990: Forman v Pillsbury, 753 F.Supp.14. This was a case in which a plaintiff’s claim that follow-up treatment had been negligent failed. The duty asserted in that case was that the doctor must “make sure that a patient comes to the office for treatment” and, further, must “provide alternative arrangements and ... make the patient comply when the doctor is on vacation or otherwise not available” (p 4 of the Lexis print). The plaintiff was thus contending for a duty of care with a much more onerous content than the plaintiff in the present case asserts. The trial judge, Harris J, said the plaintiff’s claim “would set an impossible standard”. He said a doctor could not compel a patient to come to the office for treatment nor force a patient to follow his recommendations outside the office. His view was that at best the doctor’s obligation “consisted of informing the plaintiff of the need for monitoring and performing the tests with the plaintiff’s co-operation” (p 4 of the Lexis print). The judge did not make a positive finding concerning the extent of the obligation as last mentioned, all he needed to do was to find against the plaintiff’s claim, pitched at the unrealistically high level that it was. Nevertheless, his suggestion of what the doctor’s obligation may well have consisted of is very similar to what the plaintiff has claimed in the present case.
80 By contrast, it was submitted for the plaintiff that Kite v Malycha (1998) 71 SASR 321, a decision of Perry J, was much closer to the present case. In Kite the defendant medical specialist performed a biopsy on the plaintiff which was reported on by pathologists. The pathology report indicated carcinoma of the breast. This report did not reach the specialist, who did not have any system to ensure results were received and brought to his attention. By the time the plaintiff was diagnosed with breast cancer her prognosis and life expectancy were worse than would have been the case had the specialist seen to it that he found out what had happened to the pathology report.
81 Perry J held that on the facts before him the standard of care imposed on the defendant required him inter alia to make enquiry if a pathology report were not brought to his attention and to have a follow-up system to record the fact that a pathology report was received or not received. He found the defendant liable in negligence. He also found that the plaintiff had owed a duty to exercise reasonable care for her own safety and well-being, but, in the circumstances of the case was not guilty of contributory negligence. Perry J pointed out that the simplest of systems would have provided a more or less foolproof means of checking whether pathology reports had been forwarded to the defendant’s rooms, and that he had no such system (at 336-337).
82 Perry J also adopted the submission of counsel that it was “unreasonable for a professional medical specialist to base his whole follow-up system, which can mean the difference between death or cure, on the patient taking the next step.” (at 337)
83 In the present appeal, the defendant’s submission about Kite was that the facts were so different from those in the present case that it was of no assistance. I agree that the facts are significantly different but I do not agree that the case is not useful for the purposes of the present appeal. The more general statements of Perry J which I have mentioned seem to me to be well within the orthodox field of negligence and also seem to me to be applicable, as general propositions, to the circumstances of the present appeal.
84 One part of the defendant’s written submission about Kite seems to me to be particularly revealing. Attention was drawn to one of the factual differences between Kite and the present case in the following terms:
“Unlike here, where there is no evidence to suggest that Dr Tai would have been informed by the Hospital in the ordinary course as to whether or not the RFA [ie the admission form] had been processed, in Kite, the doctor should have expected to receive test results in respect of tests he personally had commissioned.”
85 The submission is accurate in saying there was no evidence of the kind mentioned, but this simply underlines the lack of any system of the defendant by which he could keep track of his patient’s response to his advice.
86 In my opinion the defendant’s practice in regard to his sending of patients to the Auburn District Hospital to put into train the fixing of dates for operations he advised them to have, was defective. No doubt, on most occasions, the arrangements made by the patients resulted in their being operated on at an appropriate time, as had happened with the plaintiff’s two previous D and Cs. However, the defect in his practice was there and led, in the circumstances now before the court, to a dangerous delay in the diagnosis of the plaintiff’s cancer.
87 I express no opinion on the question whether the Hospital and the plaintiff should be regarded as sharing the blame for the delayed diagnosis. The Hospital’s position was not litigated before the trial judge and this court is not in a position to say anything about it. The question of the plaintiff’s possible contributory negligence was litigated before the trial judge and he found in the plaintiff’s favour. The defendant did not raise this aspect of the case in the appeal, so that, again, this court is not in a position to express any opinion about it.

The second main issue .

88 For the defendant it was submitted that there was no evidence upon which the trial judge could find that signs of cancer would probably have been discovered if the D and C had been carried out in what was in the circumstances a reasonable time from the defendant’s advice of 9 December 1992 to the plaintiff to take the admission form to the Hospital so that he could carry out the D and C procedure on her. This submission was founded upon the following question and answer in the examination in chief of Professor Tattersall.

“ Q. Is it your opinion, doctor, that had the D and C been carried out in October or indeed December of 1992 that the diagnosis of ovarian cancer could have been made?
A. I believe so .” (AB1/169, lines 53-56)

89 It was submitted, correctly, that for this part of her case the plaintiff was relying on the evidence of Professor Tattersall, and it was then submitted that the foregoing answer showed that his opinion only went so far as saying that it was possible, not probable, that if the D and C had been done at an appropriate time, the diagnosis of the cancer would have been made.
90 I do not think this submission should be accepted. It depends upon a particular meaning of the word “could” in the question to Professor Tattersall. The word has different shades of meaning according to context. One meaning is that which the defendant asserts, namely “might”. Another equally ordinary meaning is “would have been able to”. If Professor Tattersall’s question and answer are looked at in isolation from the rest of his evidence, it would be open to think that the meaning is that contended for on behalf of the defendant, although the other meaning would, in my opinion, be equally open. When however the question and answer are looked at in the light of the whole of Professor Tattersall’s evidence, it seems to me that the only reasonable meaning to give to the word is the second meaning.
91 Professor Tattersall had made a written report dated 21 October 1996. This was tendered in the course of the plaintiff’s application on 11 December 1996 to add the Hospital as a defendant. At the end of that day, as earlier mentioned, it was tendered as evidence in the action against the defendant. Professor Tattersall gave his oral evidence in the action on 12 December 1996. Thus his report was already in evidence at the time when he was asked, in examination in chief, the question the answer to which is relied on by the defendant.
92 In Professor Tattersall’s report he said, amongst other things:
“It is more likely than not that the vaginal bleeding of which she complained in October 1992 and subsequently was due to the cancer, and had the diagnosis and treatment been undertaken in late 1992 rather than in August 1993, the tumour would likely not have spread within the pelvis such that a colostomy was required as part of the surgical treatment.” (AB2/531, K-M)
93 The remainder of the report and the whole tenor of his answers in his oral evidence show, in my opinion, that the word “could” in the answer relied on carried the second of the two meanings I earlier described. There was, in my opinion, ample evidence for the conclusion the trial judge arrived at on the causation question.
94 In my opinion this branch of the appeal also fails.

Conclusion .

95 In my opinion the appeal should be dismissed with costs.

(Note: All excerpts from the transcript are reproduced as they appear in the appeal papers.)

96 HANDLEY JA: I agree with Priestley JA and Powell JA.
97 POWELL JA: The facts which have given rise to these proceedings and this appeal have been set out in the judgment which has been prepared by Priestley JA which I have read in draft form.
98 If I may, with respect, say so, the issue which, on the hearing of the appeal, the Appellant’s counsel put forward as the principal issue, and as being an issue of considerable importance in the practice of medicine was, as counsel was later to accept, not one as to the nature of a doctor’s duty to his patient. Nor, if I may say so, was it an issue as to the scope and content of the duty of a doctor - whether general practitioner or specialist - towards his patient in all cases; it was an issue as to the content of the Appellant’s duty to the Respondent given the facts established in this case. The consequence of the Appellant’s submissions on this issue being presented in the manner in which they were was, as it seems to me, to divert attention from what is the true issue in this part of the Appellant’s case.
99 Although, as the decision of the High Court in Rogers v. Whitaker (1992) 175 CLR 479; (see also Albrighton v. Royal Prince Alfred Hospital [1980] 2 NSWLR 542; F v. R (1983) 33 SASR 189, Battersby v. Tottman (1985) 37 SASR 524; E v. Australian Red Cross (1991) 27 FCR 310) makes clear, the courts in Australia apply a different standard from that applied in England (see Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 AER 118; Whitehouse v. Jordan [1981] 1 WLR 246; [1981] 2 AER 267; Maynard v. West Midland Regional Health Authority [1984] 1 WLR 634; Sidaway v. Governors of the Bethlem Royal Hospital [1985] AC 891) when determining whether, in any particular case, a doctor has discharged his duty of care towards his client, there does not appear to be any difference between the courts in each country as to the nature of that duty. Thus, in Rogers v. Whitaker supra at 483, the High Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) said:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is ‘a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.”

for the first of the propositions in the second sentence referring to the speech of Lord Diplock in Sidaway v. Governors of Bethlem Royal Hospital supra at 893 , and for the second of those propositions referring to the judgment of Cox J in Gover v. State of South Australia (1985) 39 SASR 543 .

100 Given the particular problem with which the Court is now concerned to deal, there is some advantage to be gained by setting out, in full, the particular passage in the speech of Lord Diplock to which reference was made in Rogers v. Whitaker supra. It was as follows:

“In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health in any particular respect in which the patient has sought his aid, has hitherto been treated as single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment in the improvement of the physical or mental condition of the patient for which his services either as a general practitioner or specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skilfully the treatment advised is carried out.). The Bolam case itself embraced failure to advise the patient of the risk involved in the electric shock treatment as one of the allegations of negligence against the surgeon as well as negligence in the actual carrying out of treatment in which that risk did result in injury to the patient. The same criteria were applied to both these aspects of the surgeon’s duty of care. In modern medicine and surgery such dissection of the various things a doctor had to do in the exercise of his whole duty of care owed to his patient is neither legally meaningful nor medically practicable. Diagnosis itself may involve exploratory surgery, the insertion of drugs by injection (or vaccination) involves intrusion upon the body of the patient and oral treatment by drugs although it involves no physical intrusion by the doctor on the patient’s body may in the case of particular patients involve serious and unforeseen risks.”

101 It seems to me that, in a case such as this was, in which a patient consults a doctor concerning what appears to be a persisting health problem, the doctor is, as a consequence of his being consulted, and with a view to restoring the patient’s health, called upon to examine the patient; to carry out, or have carried out, such tests or procedures as might be thought necessary, or desirable, to be carried out to enable or to assist in, diagnosis; to diagnose the cause of the patient’s problem; to determine what treatment is called for; to prescribe that treatment, or to set in train steps for that treatment to be given; and to advise the patient in relation to the condition diagnosed and the treatment prescribed or proposed.
102 If this be the scope of a doctor’s duty to his patient in such a case, then, as it seems to me, if the doctor, without reasonable cause, fails to carry out, or to have carried out, such of the steps to which I have referred as, in the circumstances, were necessary or desirable, or, although carrying them out, does so without due care and skill, he has failed in the performance of his duty to his patient. When using the phrase “without reasonable cause”, I had in mind the passages - with which I agree - from Gieson: International Medical Malpractice Law which Priestley JA has set out in paragraphs 71-72 of his judgment, for while, in some cases - of which Kalokerinos v. Burnett Court of Appeal 30 January 1996 (unreported) provides an example - a patient’s failure to co-operate may rise no higher than contributory negligence, there are in other cases - of which Forman v. Pillsbury (1990) 753 F.Supp 14, to which Priestley JA has referred in paragraph 79 of his judgment, provides an example - when a patient’s failure to comply with the doctor’s recommendation will dictate a finding of no breach of the doctor’s duty of care.
103 If - as I believe to be the case - what I have written in the preceding paragraph be correct, then it is sufficient to accommodate not only such situations as were considered in Rogers v. Whitaker supra and Kalokerinos v. Burnett supra, but also such diverse situations as that considered by Jackson SPJ (as he then was) in Samios v. Repatriation Commission [1960] WAR 219; as that considered by W.B. Campbell J (as he then was) in Thomsen v. Davison [1975] Qd R 93; and as that considered by Perry J in Kite v. Malycha (1998) 71 SASR 321 to which Priestley JA has referred in paragraphs 80-82 of his judgment.
104 In Samios v. Repatriation Commission supra at 228-229 Jackson SPJ held that the Commission was negligent, first, in not advising the plaintiff that an immediate operation was necessary, and in letting him leave its hospital on the basis that he could think the matter over and advise his decision on the matter in six weeks time; and, second, in not following the matter up after the expiry of that period of six weeks.
105 Thomsen v. Davison concerned a trooper in the Citizen Military Forces (as the Army Reserve was then known) who, while on his unit’s annual camp, was examined by the defendant who was the unit’s Regimental Medical Officer. As tests carried out by the defendant caused him to doubt the plaintiff’s state of health he requested the plaintiff to attend a laboratory for the purpose of having further blood and urine tests carried out. However, he failed thereafter to ascertain the result of those tests or to advise the plaintiff as to what they revealed. In the course of his judgment supra at 97, W.B. Campbell J said:

“In my opinion the duty of care owed by the first defendant to the plaintiff extended to the requirement to take all reasonable steps to inform himself of the result of the tests and, if they proved to be adverse, to advise the plaintiff to undergo investigation and treatment. There is ample evidence upon which the jury could find, as it did, that the first defendant failed to ascertain such results and failed to recommend to the plaintiff that his state of health ought to be investigated. Was the jury justified in finding that those failures amounted to negligence? I have already indicated that the evidence is sufficient to establish that Dr. Davison should reasonably have foreseen both that his conduct would lead the plaintiff to believe that he was in good health and that causing the plaintiff to have such a belief, and to continue to lead his life accordingly, could result in damage to his health. It is not disputed that it would have been an easy task for the first defendant to have ascertained the test result and he admitted that, had he been aware of them, he would have advised the plaintiff to seek medical treatment because of the likelihood of his suffering from serious kidney disease.
Although the relationship of doctor and patient in the ordinary sense may not have existed between the first defendant and the plaintiff, and assuming for present purposes that it did not, it seems to me that a doctor who undertakes the examination of a person in order to assess his state of health has a duty of care (not merely to the Army, the insurance company or other employer as the case may be), to that person to conduct the examination competently. He is also under a duty to the examinee not to do anything, or to omit to do anything, in the course of performing the examination, which is likely to cause the latter damage. Dr. Davison set in motion the taking of further tests and there is ample evidence to establish that it was understood by both parties that the doctor would follow up these tests. In effect, the jury have found that the doctor did not complete the examination upon which he had entered and, in the circumstances, this omission was such as to justify a finding that the doctor should reasonably have foreseen that it may cause harm to the plaintiff; the doctor had the task of watching over the health of the soldiers when they were in camp and on army duties, and should have been aware of the confidence and trust they were likely to place in him.”

106 Although the facts differed in their detail from those later considered by Perry J in Kito v. Malycha supra in their essential features the two cases were the same.
107 Although, again, the facts in Thomsen v. Davison supra and Kite v. Malycha supra differ in their detail from those with which we are concerned to deal in this case, it seems to me that, in substance, they are the same and invite a similar approach to that taken by W.B. Campbell J and Perry J. In the present case, the Appellant, having considered - rightly - that in order that he might properly diagnose the cause of, and prescribe appropriate treatment for, the Respondent’s complaint, he should carry out a dilation and curettage, and having put in train the steps for that to be done, by reason of what appears to have been inadequacies in his own system, failed to ensure that the procedure which he considered necessary in the Respondent’s interests was carried out, the results obtained and the Respondent advised accordingly. That being so, he, in my view failed in his duty to the Respondent.
108 So far as the second main issue raised by the Appellant is concerned, I agree with what Priestley JA has written, and do not wish to add anything.
109 In the result, the Respondent having been found to have suffered injury as a result of the Appellant’s failure to fulfil his duty to her, and the Appellant having failed to appeal against the rejection by Williams A-DCJ of the Appellant’s claim that the Respondent had, in the circumstances, been guilty of contributory negligence, I agree with Priestley JA that the appeal should be dismissed with costs.

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