Limitation extension: material fact – medical negligence about breast reconstruction

Masters v Daoud [2020] QDC 38

Decision delivered 20 March 2020, Brisbane, by Rinaudo DCJ

Parties

SHERYL MASTERS

(Applicant)
v
MARK DAOUD

(Respondent)

Facts

In August 2013, the applicant saw the respondent doctor for breast cancer treatment. The respondent advised the applicant that her life was at risk, so it was urgent that she undergo a mastectomy of the right breast and it was not advisable that she undergo a breast reconstruction or have her nipple preserved in that procedure.

After a friend of the applicant in a similar situation consulted both the respondent and another doctor who advised she could undergo immediate breast reconstruction, the applicant questioned the advice not to have a breast reconstruction she received from the respondent. She consulted two plastic surgeons and, in August 2014, underwent bilateral mastectomy and reconstruction. These doctors did not explicitly advise the applicant that the respondent’s advice was wrong, but the applicant formed the view they did not agree with it.

The applicant lodged a complaint with the Office of the Health Ombudsman (OHO) in May 2015. She regularly followed up on the progress of this complaint, which was referred in turn to the Australian Health Practitioner Regulation Agency (AHPRA), but she did not receive its decision not to take further action until 30 August 2018. However, the AHPRA noted that, based on an assessment by Professor Ian Bennett, a number of her claims were substantiated. Following the receipt of this information, the appellant sought legal advice.

By a consent order of the Deputy Registrar on 29 July 2019, the applicant was granted leave pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld)  (PIPA) to commence proceedings in the District Court. The limitation period for bringing a claim under the PIPA expired on 23 August 2016. The applicant brought an application to extend the time for commencing proceedings pursuant to s 31 of the Limitations of Actions Act 1974 (Qld).

Issues

The Court outlined the relevant question(s) at [27]:

For the applicant to obtain an extension of the limitation period the applicant must show:

(a)  That the applicant became aware of a “material fact” within a year prior to the relevant date (in this case, the relevant date is 30 July 2018);

(b)  That the material fact was of a “decisive character”,

(c)  That the material fact was not within the applicant’s knowledge or means of knowledge any earlier;

(d)  That there is evidence to establish the right of action other than the limitations defence; and

(e)  That the discretion ought to be exercised in the applicant’s favour, to which issue a question of prejudice is relevant.

Submissions

The applicant contended that the relevant “material fact” was the substance of Professor Bennett’s opinion to the AHPRA that she was misdiagnosed and that the respondent was negligence in his treatment of her. The applicant submitted that this was not within her knowledge prior to that time – although she had consulted two plastic surgeons, they did not specifically state that the respondent’s advice was incorrect.

The respondent submitted that, by March 2015, the applicant had multiple medical opinions that she could have had reconstruction, she was aware that there were alternate treatments (which included nipple preservation and immediate reconstruction), she was aware she hadn’t been given the option of immediate reconstruction and/or nipple preservation, she knew she had been misdiagnosed (as to the specific type of breast cancer) though in either event she ought to have taken more time to decide and undergone an MRI of her other breast.

Decision on the Issues

The Court highlighted at [68] that, although the applicant spoke to two plastic surgeons about her treatment by the respondent, neither advised her that they were of the opinion that the respondent was negligent in his treatment of her. The applicant also took timely action in applying to the OHO, and repeatedly following up with both the OHO and the AHPRA. Accordingly, the decision of Professor Bennett was a “material fact” of a “decisive character” which the applicant became aware of within a year prior to the relevant date, and which was not within the applicant’s knowledge of means of knowledge prior to that.

The application allowed and time for commencing proceedings extended until 30 August 2019.

David Cormack – Brisbane Barrister and Mediator

Madeleine Bowater – research assistant 

 

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