Medical negligence: failure to refer to a specialist – $6m ☹

Mules v Ferguson & Anor [2014] QSC 51

 

In 2008 when the plaintiff fell ill she was 43 years of age. The plaintiff developed the rare cryptococcal meningitis infection, which progressed with catastrophic consequences. Had the plaintiff been successful at trial, Henry J would have awarded $6,727,776.04 in damages, including the maximum ISV of $250,000.00, full economic loss, future superannuation at 11% and future care of $4,333,785.46 (at the rate of $35.00/hour), allowing a 12% discount for contingencies.

 

The plaintiff did not allege the doctor ought to have foreseen she was suffering from cryptococcal meningitis, but rather that:

 

[29] …the defendant ought reasonably have known that the plaintiff’s clinical features were not attributable to a musculo-skeletal condition and indicated the presence of a potentially serious condition involving the central nervous system. It is further contended in effect that there was a not insignificant risk of grave harm to the plaintiff’s health if the precaution was not taken of referring the plaintiff to a neurologist, general physician or emergency department for urgent specialist assessment.

 

Unsurprisingly, the claim was factually sensitive and dependent on medical opinions.

 

It is instructive in the restatement of the relevant principles and defences, as well as a touchstone for quantum considerations in catastrophic injury claims.

 

Henry J:

The duty owed

 

[21] The duty owed to the plaintiff by her doctor was effectively the same in contract and tort.

 

[22] In contract the primary duty owed by a medical practitioner is the duty “to exercise reasonable care and skill in the provision of professional advice and treatment.”[25] The duty in tort was described by the High Court in Rogers v Whittaker[26]:

 

“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.” (citations omitted)

 

[23] One of the ways a doctor is called on to exercise skill and judgment is to determine whether a patient ought be referred for specialist assessment. Failure to refer a patient for further investigation or consultation can potentially constitute a breach of duty.[27]

 

[24] While there are a variety of alleged shortcomings in the care and skill exercised by the defendant, the key allegation is that the failure to refer the plaintiff for specialist assessment was a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment to the plaintiff.

Determining the alleged breach of duty

 

[28] The determination of whether the defendant breached her duty to exercise reasonable care and skill in the provision of professional advice and treatment is subject to the general principles in s 9 of the Civil Liability Act 2003 (Qld) (“CLA”):

 

9 General principles

(1) A person does not breach a duty to take precautions against a risk of harm unless—

 

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

 

(b) the risk was not insignificant; and

 

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

 

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

 

(a) the probability that the harm would occur if care were not taken;

 

(b) the likely seriousness of the harm;

 

(c) the burden of taking precautions to avoid the risk of harm;

 

(d) the social utility of the activity that creates the risk of harm.”

 

[29] The plaintiff does not allege the defendant should actually have foreseen that the plaintiff may have been suffering from cryptococcal meningitis. Rather, it is in effect contended, the defendant ought reasonably have known that the plaintiff’s clinical features were not attributable to a musculo-skeletal condition and indicated the presence of a potentially serious condition involving the central nervous system. It is further contended in effect that there was a not insignificant risk of grave harm to the plaintiff’s health if the precaution was not taken of referring the plaintiff to a neurologist, general physician or emergency department for urgent specialist assessment.

 

Relevance of Expert Evidence of Acceptable Medical Practice

 

[30] Evidence was adduced at trial of whether what was done by the plaintiff was consistent with acceptable medical practice. Such evidence is relevant to the assessment of whether there has been a breach of duty but it does not define the content of the duty. It is not determinative of the appropriate standard of care. That is a matter for the courts to adjudicate upon.[29]

 

[31] However evidence of compliance with acceptable medical practice may ground a defence where causal liability is otherwise proved.[30] That defence is contained in s 22 of the CLA which provides:

 

Standard of care for professionals

(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

 

(2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.

 

(3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.

 

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

 

(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.”

 

[32] The plaintiff submits s 22(5) has the effect of excluding a s 22 defence where the alleged breach involves a failure to refer a patient for more expert examination or treatment. However that sub-section relates to giving or failing to give a warning, advice or information “in relation to the risk of harm to a person, that is, associated with the provision by a professional of a professional service.” Section 22(5) is apt to those cases where the breach otherwise arising flows from a failure to properly provide a patient with sufficient information to allow the patient to make an informed decision about the risk of harm in undergoing a particular medical service. It is not apt to a case like the present where the gravamen of the breach lies in failing to identify and warn the patient of the need for the patient to be provided with a medical service by another.

 

[33] The evidence of expert opinion adduced at trial is thus relevant not only to the assessment of whether there has been a breach of duty but also to whether or not the defendant has a s 22 defence.

 

No relevant breach

 

[268] Hindsight bias, driven by knowledge the plaintiff was the subject of a much more catastrophic condition than suspected, may naturally cause commentators to make more than is reasonable out of symptoms which had more than one potential cause. However the plaintiff’s symptoms suggested a musculo-skeletal cause was likely. The CT scan supported that conclusion. The plaintiff did not as at 18 or 19 September have a discernible collection of symptoms which should have caused the defendant, acting with reasonable care and skill, to conclude she should refer the plaintiff for urgent or specialist assessment.

 

[269] The only shortcoming in the defendant’s conduct was that in circumstances where the plaintiff complained of neck pain with accompanying headaches and flushing of the face on 12 September and presented with neck pain and a limited range of movement on 18 September, the defendant should, acting with reasonable care and skill, have physically examined the plaintiff’s neck and enquired about the progress of the plaintiff’s past reported symptoms of headache and facial flushing. However, such examination and enquiry would not have detected anything that would have prompted a different course than that taken. The omission did not have a causal connection with the plaintiff’s injury and loss.

 

[270] The plaintiff did not breach her duty to exercise reasonable care and skill in not recognising a potentially serious central nervous system may have been developing. Nor did she breach that duty by not referring the plaintiff to a neurologist, general physician or emergency department for urgent specialist assessment.

 

[271] The tragic outcome which befell the plaintiff as a result of this insidious disease was not the result of any breach on the part of the defendant.

 

[272] The plaintiff has failed to prove any causative breach of duty by the plaintiff in contract or tort and her claim must fail.

 

Section 22 defence

[273] Dr Kable opined the defendant’s actions were reasonable and the defendant provided competent and comprehensive care of a standard expected of a general practitioner.[392] He opined that there would be a significant number of general practitioners who would have managed the plaintiff in exactly the same manner as she was managed by the defendant on 12, 18 and 19 September 2008.[393]

 

[274] Dr Turnbull also considered on an acceptance of the plaintiff’s version of events her management of the case was consistent with a reasonable standard of General Practice.

 

[275] These opinions of both expert general practitioners are persuasive in circumstances where the facts as found are largely consistent with the plaintiff’s version of events.

 

[276] In the event it be necessary to consider the application of the defence provision in s 22 of the CLA, my conclusion on the whole of the evidence is that at the time of the consultations of 18 and 19 September the defendant acted in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. For that reason also, the defendant did not breach her duty.

 

D. CAUSATION

[277] Because I have found there was no breach of duty it follows the plaintiff’s conduct was not causally responsible for the harm tragically suffered by the plaintiff and her case must fail. However lest I am wrong in my finding as to breach (and the s 22 defence) it is appropriate to also deal with the issue of causation.

 

[278] Consideration of whether the alleged breach caused the harm suffered requires an application of the general principles in s 11 of the CLA, which relevantly provides:

 

“11 General principles

(1) A decision that a breach of duty caused particular harm comprises the following elements—

 

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

 

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

 

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.”

 

[293] For the reasons explained above it is likely treatment would have commenced before or on 23 September. While the plaintiff’s sudden serious decline was nearly upon her it appears more likely than not from the evidence of physiotherapist Mr Elsmore that even at that date the plaintiff’s condition had not reached the acute stage. Accordingly it is more likely than not that had treatment commenced by then the plaintiff would not have suffered the permanent injuries to her health.

 

Brisbane Barrister – David Cormack

NB: reversed on appeal:

Mules v Ferguson [2015] QCA 5

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