Mazza v Webb [2011] QSC 163

Issues: whether there was failure to diagnose a small bowel carcinoma when undergoing an endoscopy and whether the report to the treating G.P was deficient and misleading.

Facts: Dr Fitzsimon the plaintiff’s G.P referred her to Dr Webb who performed an endoscopy in  February 2004 and reported the pharynx, oesophagus and stomach appeared to be normal, but the “duodenum still appears abnormal consistent with ongoing villous atrophy” (Coeliac disease). He advised that small bowel and entral biopsies had been taken and sent to a laboratory. Against the word “summary”, he wrote “persisting villous atrophy”. Subsequently, the plaintiff continued to lose weight, vomiting, diarrhoea and complain of abdominal pain, which initially were attributed to her Coeliac disease, however with her weight becoming dangerously low (33 kg’s) another endoscopy was performed by Dr Andrew Bryant, in May 2005, who discovered a small bowel carcinoma. This was removed and the plaintiff underwent chemotherapy for the balance of 2005. Initially the prognosis was poor, but since the plaintiff’s health improved to the point of returning to work. A claim was brought against Dr Fitzsimon, but did not proceed to trial and was not considered relevant to the claim against Dr Webb.

McMurdo J:

[7] In essence, there are two parts to that case. First, it is alleged that Dr Webb should have conducted a more extensive endoscopy, meaning that he should have passed the scope further into the patient and as far as Dr Bryant did in 2005. Just precisely where the tumour was located by Dr Bryant is an issue here. But ultimately it does not matter for the plaintiff’s first argument, which is that (as Dr Bryant’s procedure proved) the endoscope could have been directed far enough into the patient, without undue difficulty, discomfort or risk to her, to make the tumour apparent.

[8] Secondly, the plaintiff complains about what was written, or more importantly not written, by Dr Webb to Dr Fitzsimon. It is alleged that Dr Webb should have advised that he had not found a satisfactory explanation for her symptoms and that some further investigation was required. The plaintiff’s case is that in that event she would have been likely to have undertaken some further procedure which would have then revealed the tumour.

[29] On the evidence of Dr Sandford and Dr Bryant, I find that the usual practice is to proceed only as far as D2, unless an attempt to go further is warranted by “particular symptoms or signs”. I find that this was then widely accepted by peer professional opinion by a significant number of respected practitioners in this field as a competent professional practice, as described in s 22(1) of the Civil Liability Act 2003 (Qld). Consequently, Dr Webb was not negligent in so far as he acted according to that practice, unless I were to find that the peer professional opinion was irrational or contrary to a written law: s 22(2). No inconsistency with a written law arises here. As to the rationality of that peer opinion, it is the subject of strong criticism by Dr Hourigan, as part of his opposition to the practice of open access endoscopy. He argues that this is an abdication of professional responsibility by the gastroenterologist, because in his view it is essential that this procedure be undertaken, not only by a specialist, but with the benefit of a consultation. But again, the practice of open access endoscopy is now well-established and has wide acceptance by at least a significant number of respected practitioners in the field as competent professional practice, and I was not asked to find otherwise. Nor was I asked to find that the practice of normally proceeding no further than D2 is one which is irrational. Rather, the plaintiff appears to accept the practice, but argues that this was an exceptional case where the symptoms and signs required the specialist to proceed further.

[30] Importantly, the plaintiff’s condition as it appeared to Dr Bryant was not identical to that which was presented to Dr Webb. Her weight loss, according to the form which Dr Fitzsimon completed, had been about 4 kilograms. By the time of Dr Bryant’s procedure, the plaintiff had lost about another 12 kilograms. And Dr Bryant said that the main reason he tried to pass the scope further than he would have done in a “routine endoscopy” was that when he reached the stomach, he found a large volume of bile stained fluid, suggesting that downstream from the stomach there was something that was obstructing the flow of fluid. The same had not been encountered by Dr Webb.

[40] Should Dr Webb have done more, either in the procedure or in his report? Undoubtedly Dr Webb owed a duty of care to the plaintiff. The duty which the law imposes on a medical practitioner is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”.[3] In Rogers v Whitaker,[4] it was said that this duty “extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case”. But the content of the duty here, it must be accepted, was affected by the limits of the task which Dr Webb had been asked to perform. That was an investigatory task. He was not asked to treat the plaintiff. He was obliged to exercise the reasonable care and skill to be expected of a gastroenterologist experienced in this procedure in undertaking this investigation. In particular, he was bound to act with reasonable care and skill in deciding whether the circumstances, as they were presented to him, warranted proceeding further than in the usual case. That required him to consider the plaintiff’s symptoms, and to decide whether they were satisfactorily explained by what he discovered by passing the scope as far as D2. If he truly believed that each of these symptoms could be explained by untreated Coeliac disease, then that was a misunderstanding which was serious enough to involve a departure from a reasonable standard of skill and care. I am by no means sure that that was his belief. I think it is at least as likely that he saw his role as being simply to proceed to the D2, and then to record what he had seen.

[41] The question then is whether a reasonably competent specialist must have proceeded further than D2, if possible. The fact that, had this been attempted in this instance, a more extensive investigation could have been conducted without difficulty or risk and with but a few minutes of extra work, might indicate that this should have been done, in circumstances where serious symptoms were not explained by what had been found by going as far as D2. On the other hand, there is force in Dr Sandford’s point that there were many possible causes of these symptoms and that there was no particular likelihood that the actual cause would have been identified by attempting to pass the scope further.

[42] I am not persuaded that Dr Sandford’s opinion upon this is to be rejected. But if Dr Webb need not have investigated further, it was incumbent upon him to reveal the limitations of his investigation, lest the treating doctor or the patient thought that no further investigative procedure could be warranted. Dr Sandford’s evidence was that “as a first line procedure … I think that Dr Webb’s decision to only pass the endoscope as far as the 2nd part of the duodenum was quite reasonable”. But he agreed that Dr Webb’s report would not have “communicate[d] to anyone that it was a first line procedure … from the point of view of saying that further investigations were necessary at that stage”. Further, Dr Sandford agreed that “normally the report does list or state the extent of the procedure, and that was not done in this case”. And critically, he agreed that there was a deficiency in the report in that it had given “the impression that the only problem was Coeliac disease and that … the endoscopy had in fact confirmed that”.[5]

[43] There was a foreseeable risk that a serious condition, such as a tumour, existed in the case of this patient with the symptoms which were recorded, and that this would go untreated if undetected. Notwithstanding the “open access” basis for the procedure, Dr Webb was obliged to exercise reasonable skill and care to avoid that risk. If he was not to pass the endoscope as far as possible, to try to identify the cause of all of her symptoms, reasonable care demanded that he at least alert the treating doctor and the patient that his investigation had been limited and that it had not yielded a satisfactory explanation for her symptoms. He failed to do that. Instead he wrote a report which represented that he had found such an explanation.

[44] Although he was not the doctor responsible for the plaintiff’s treatment, it must be remembered that he was the specialist. As Dr Sandford said, gastroenterologists “are dealing more commonly with these relatively uncommon conditions than GPs and we see a wider spectrum of the complications resulting from those diseases and therefore are far more aware of them as possibilities”. The specialist should not have left it to the GP to assess whether the symptoms had been satisfactorily explained by the presence of villous atrophy. And as I have found, in this case the report was not only uninformative but also misleading.

[47] The next question is whether Dr Webb’s negligence, by reporting as he did, was causative of the damage of which the plaintiff complains, which is from the tumour being undetected and untreated over the next 15 months. Had Dr Webb reported that only some of her symptoms could be explained by the villous atrophy, what would have happened? I have found that the plaintiff would have accepted advice, if given by her general practitioner, that she should undertake some further investigative procedure. But is it likely that this would have been the GP’s advice had Dr Webb given a proper report? Dr Fitzsimon thought that the plaintiff had substantial psychological problems. It is possible that she would have been dismissive of the plaintiff’s symptoms, and given much the same advice as she did give to the plaintiff. But that would have been a brave course for a general practitioner, faced with a report which said that the endoscopy had not found a satisfactory explanation for all of the patient’s symptoms and with a patient who was apparently very ill and wanting to know the cause of her illness. More probably than not, the plaintiff would have pressed Dr Fitzsimon for advice as to what other investigative procedures might reveal what was wrong with her. She certainly showed no disinclination to seek medical treatment. In those circumstances, it is probable that Dr Fitzsimon would have taken the prudent course of recommending some further investigatory procedure of the kind described by Dr Sandford. In that event, as I have found, the plaintiff would have accepted the advice. There seems to be no dispute that this would have revealed the tumour.

[48] Ultimately then, I am satisfied that more probably than not, Dr Webb’s report, by what it said and what it did not say, was causative of the plaintiff not undergoing some further investigative procedure and of her tumour being undetected. The remaining questions concern the extent of that harm and what should be the compensation for it.

[59] There is no contest as to the fact of her continuing symptoms throughout 2004 and until the removal of the tumour in 2005. Nor is it disputed that her ongoing vomiting and other gastrointestinal symptoms, coupled with her weight loss and overall deterioration, was due to the tumour. In particular, Dr Sandford said so in his first report. Accordingly, the plaintiff must be compensated at least for what she suffered for a period of a little over 12 months, being the interval between the time at which she would have had the cancer removed and when it was removed. The suffering of these symptoms and more generally her very poor health was made particularly difficult for her by her pregnancy. There was also the fact that she was admitted to hospital for psychiatric treatment before it became apparent that her illness had quite another cause.

[64] The result is that it is not proved that the surgery and subsequent treatment would have been different in 2004. I accept that her recovery would have taken less time then, because her health had not deteriorated as far as it had by May 2005. But it is difficult to quantify the impact of that difference in relation to earning capacity or the need for care. She must be allowed some damages upon this basis, as well as for the effects upon her in the year or more prior to May 2005. Ultimately I accept that her recovery, so far as earning capacity and the need for care are concerned, was extended by at least six months because of the deterioration in her health by May 2005. Upon those findings I come to the components of her award.

Quantum

Age Injury Dominant ISV Uplift Occupation Past loss of income Future loss of earning capacity Gratuitous care
32(F) Small bowel carcinoma –

extreme injury to the digestive system not caused by trauma (failure to diagnose and report)

Item 59 and ISV 24

 

$33,200.00

ISV 24 n/a[1] Clerical $23,370

8 months

$20,000.00


[1] [66] ISV can only be increased beyond maximum if there are multiple injuries.

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