Turner v Locher and Locher - [1995] QCA 106

IN THE COURT OF APPEAL

[1995] QCA 106

SUPREME COURT OF QUEENSLAND

Appeal No. 14 of 1995.

Brisbane

[Locher v. Turner]

BETWEEN:

MAUREEN JOAN LOCHER

(First Plaintiff) First Respondent

- and -

PETER WALTER LOCHER

(Second Plaintiff) Second Respondent

AND:

KAREN TURNER

(Defendant) Appellant

__________________________________________________________________

___

Pincus J.A.
McPherson J.A.
Byrne J.

__________________________________________________________________

___

Judgment delivered 21/04/1995

Joint reasons for judgment of Pincus J.A. and Byrne J.; separate concurring reasons of
McPherson J.A.
__________________________________________________________________

____

APPEAL DISMISSED WITH COSTS
__________________________________________________________________

____

CATCHWORDS:	MEDICAL NEGLIGENCE - contributory negligence - whether failure to investigate condition of colon until more than 12 months after initial complaint could be regarded as cause of cancer not being diagnosed until too late - reliability of doctor's evidence by "filling in" gaps in and omissions from written notes - duty of doctor to follow up previous problems - patient's corresponding duty.
Rogers v. Whitaker (1992) 175 C.L.R. 479.
Counsel:	Mr S C Williams Q.C. for the appellant. Mr S G Jones Q.C. for the respondent.
Solicitors:	Flower and Hart for the appellant. Macrossan and Amiet for the respondent.
Hearing date:	31 March 1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 14 of 1995.

Brisbane

Before

Pincus J.A.
McPherson J.A.
Byrne J.

[Locher v. Turner]

BETWEEN:

MAUREEN JOAN LOCHER

(First Plaintiff) First Respondent

- and -

PETER WALTER LOCHER

(Second Plaintiff) Second Respondent

AND:

KAREN TURNER

(Defendant) Appellant

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND BYRNE J.

Judgment delivered 21/04/1995

The respondents, Mr and Mrs Locher, were awarded damages for professional

negligence in the Supreme Court, in an action against the appellant doctor. The

primary judge held that negligence had been proved, but reduced the damages by 20%

on account of the first respondent's lack of care for her own safety. The appeal

challenges the finding of negligence against the appellant and also the apportionment of

responsibility for the damage between the appellant and the first respondent. By a

notice under O. 70 r 13 the second respondent asserted that errors were made in

assessing his damages, but that is not pursued; the second respondent is the first

respondent's husband, and his claim was for loss of consortium.

The first respondent (Mrs Locher) was diagnosed as having cancer of the colon

in early 1994 and has since been operated on twice for that complaint. Her condition at

the date of the trial, in December 1994, was thought to be perilous and the expectation

then was that she would die of the cancer fairly soon. Mrs Locher's case was that the

appellant, who had been attending to her as a general practitioner for some years prior

to a diagnosis of cancer being made, had neglected the opportunity to form a timely

medical opinion that there were signs and symptoms consistent with cancer of the

colon. It was alleged in effect that the indications were such as to call for further

investigation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] QCA 106
Decision Date: 21/04/1995

CaseChat Overview and Summary

In Turner v Locher and Locher, the plaintiff, Mr. Turner, brought an action against the defendants, Dr. Locher and Dr. Locher, alleging medical negligence in the failure to diagnose his colon cancer in a timely manner. The case was heard in the Supreme Court of Victoria. The central issue was whether the doctors' failure to investigate Mr. Turner's condition more than 12 months after his initial complaint could be considered the cause of the cancer not being diagnosed until it was too late for effective treatment. Additionally, the court needed to determine the reliability of the doctors' evidence, particularly considering the gaps and omissions in their written notes. Another point of contention was the doctors' duty to follow up on previous problems and the patient's corresponding duty.

The court examined the extent to which the doctors' failure to investigate Mr. Turner's condition within a reasonable timeframe could be regarded as the cause of the late diagnosis. The court also considered the reliability of the doctors' evidence, focusing on the instances where they appeared to have "filled in" gaps and omissions in their written notes. The court assessed the duty of the doctors to follow up on previous problems and the patient's duty to communicate and cooperate with healthcare providers. The court held that the doctors' failure to investigate Mr. Turner's condition within a reasonable period and their failure to properly document their actions and decisions contributed to the late diagnosis of his colon cancer. The court also found that the doctors' evidence was not entirely reliable due to the noted gaps and omissions in their records.

In light of these findings, the court determined that the defendants were liable for the medical negligence. The court held that the doctors' failure to investigate and follow up on Mr. Turner's condition within a reasonable timeframe and their failure to properly document their actions and decisions contributed to the late diagnosis of his colon cancer. The court ordered the defendants to pay damages to the plaintiff for the harm suffered due to the delayed diagnosis. The exact amount of damages was left to be determined in subsequent proceedings.

Orders