The Plaintiff's Conduct of her Case
8The plaintiff did not file any experts' reports with the Statement of Claim as required by subrule 31.36(1). The Court has not made any order under that subrule relieving the plaintiff from compliance with the rule.
9On 14 November 2012, more than 10 months after filing her Statement of Claim, the plaintiff saw Dr Todman, neurologist. On 14 November 2012 the plaintiff sent to the defendant by email a copy of Dr Todman's report of that date. The report is addressed to a firm of solicitors in Brisbane, though it appears that while that firm assisted the plaintiff to obtain Dr Todman's opinion it did not otherwise act for her in the prosecution of her claim.
10In his report Dr Todman dealt thus with the plaintiff's history: -
History
In the early part of 1999 Mrs Thomas developed visual impairment in the right eye. Her visual acuity had dropped to 6/9. She saw an ophthalmologist at the time, but no specific diagnosis wa$ made. Visual evoked responses in the right eye, left half field were abnormally prolonged and the left eye central and left, right half were normal. At the time she also reported double vision. She also had patches of numbness throughout her body.
She said that in 1998 she had an episode of vertigo. She thought it may have developed because of an insect or spider bite. The vertigo was only of short duration, but she was found subsequently to have nystagmus in her right eye. Also after that she began to experience episodes of numbness in her feet and on the left arm. There was also difficulty distinguishing between hot and cold sensation in the left arm, but this would be intermittent.
Prior to this there was no other neurological history. In the family history her father's cousin had Multiple Sclerosis while a paternal grandfather had Parkinson's Disease.
Mrs Thomas was referred to Dr Suzanne Hodgkinson, a Neurologist at Liverpool Hospital. Dr Hodgkinson arranged a number of tests including an ANA, ESR and anti-cardiolipin antibodies which were all normal. MRI scan of the brain and subsequent MRI scan of the spinal cord were both normal.
She later had repeat evoked responses including somatosensory and motor evoked responses. The somatosensories were abnormal from the lower limbs.
Mrs Thomas indicated that she was given a diagnosis of probable Multiple Sclerosis by Dr Hodgkinson. Dr Hodgkinson confirms this on page two of her letter in which she states, 'I've discussed these results with Carol Barker and believe that she has probable Multiple Sclerosis. The normal MRI scan has been reported in Multiple Sclerosis although it is fairly unusual." In the letter to Dr Chaudhry in Minto, she suggests that it would be worthwhile repeating the MRI scan in six to twelve months and suggested that Mrs Thomas return to see her if there were any new neurological complaints.
There is a further handwritten letter to Dr Chaudhry in which she indicates that Carol Barker has "symptoms suggestive of MS'7 with the abnormal test results and even though her MRI scan was normal, she stated "I believe that these changes are consistent with probably (probable) Multiple Sclerosis.
Mrs Thomas said that she believed after that, that she had Multiple Sclerosis and made certain life decisions regarding her career and having children based on this knowledge.
In 2009 Carol Barker saw Dr Christopher Staples, Neurologist at Redcliffe, He noted the symptoms of numbness in parts of her body including genitalia and throat He noted that tandem gait was a little unsteady, but no other abnormality. She had had some turns at that time which she considered might represent partial seizures, but an EBG examination on 31.03.2009 was normal. A further MRI scan of the brain was also normal.
Dr Staples concluded that Mrs Thomas did not have Multiple Sclerosis, but offered no specific diagnosis with respect to her various symptoms other than raising complex partial seizures which were likely excluded by the normal EEG.
Education and Employment History
Mrs Thomas has just completed a paramedic program and is about to start an intern program in 2014. In the 1990's she was studying an Arts and men Science Degree and had an ambition to study medicine. She said that she put on hold any thoughts of studying to be a doctor because of the diagnosis of Multiple Sclerosis,
Examination
The physical examination showed unsteadiness of heel/toe walking. Strength, reflexes and sensation were normal in all limbs.
There was a mild intention tremor in both upper limbs.
Cranial nerve testing was normal.
File Review
I have read the reports provided to me and a copy of your Index to Medical Brief is enclosed.
Conclusion
I would conclude from my assessment today that it is unlikely that Mrs Carol Thomas has Multiple Sclerosis. She has a variety of neurological symptoms and some of the symptoms have been episodic. Originally these symptoms raised the possibility that Mrs Thomas may have Multiple Sclerosis. Her initial symptoms of loss of vision in the right eye suggested the possibility of right optic neuritis. The delayed visual evoked response with a normal ophthalmological examination would suggest this possible diagnosis. Her other neurologic symptoms however have been nondescript. The episode of vertigo with nystagmus in 1998 may have been of vestibular origin. She also reported transient diplopia, but this was not supported by a finding of abnormal eye movements on examination. Also the episodes of sensory impairment which still continue have not been associated with any objective sensory loss.
11Dr Todman went on to discuss the diagnostic criteria for multiple sclerosis, which had changed over time. As opposed to the criteria generally accepted when the report was written, Dr Todman stated that those applicable in 1999 were the Poser criteria. They were the criteria by which any judgment should be made about the defendant's diagnosis. Dr Todman went on to answer a number of questions that had been asked in the referring letter. They included:-
1. Was Dr Hodgkinson's diagnosis, as expressed in the undated handwritten letter to Dr Chaudhry that Mrs Thomas has Multiple Sclerosis, reasonable in all the circumstances. Please note the diagnosis was in 1999. We understand the diagnostic criteria have been amended since then but we ask that you respond with reference to the criteria in common usage at the time.
The application of the diagnostic criteria for Mrs Thomas in 1999 would allow the diagnosis of probable Multiple Sclerosis.
2. What further tests, examination and investigation would you have undertaken or arranged if Mrs Thomas had been your patient in 1999? Please explain why you would have undertaken these further actions.
In retrospect I think that CSF examination for oligoclonal proteins may have given further evidence one way or another about the possibility of Multiple Sclerosis. This may have clarified the diagnosis to some extent
3. What results of the above examinations and investigations would you have required before you would have been prepared to diagnose Multiple Sclerosis in Mrs Thomas in 1999?
As stated above, the application of the term 'probable Multiple Sclerosis' was not unreasonable considering the diagnostic criteria at the time. The difficulty in this case was that some of the clinical symptoms were non-specific and may have had other explanations.
4.Did Dr Hodgkinson breach her duty of care to Mrs Thomas in providing the diagnosis of Multiple Sclerosis on the evidence available to her at the time and with reference to the diagnostic criteria at the time.
Based on my assessment I could not conclude that Dr Hodgkinson breached her duty of care to Mrs Thomas.
12After further correspondence, Dr Todman wrote a supplementary report on 27 November 2012. The report ran in part:-
1. Mrs Thomas has requested that you please clarify your answer to Question 3 - What results of the above examinations and investigations would you have required before you would have been prepared to diagnose Probable Multiple Sclerosis in Mrs Thomas in 1999?
Although the clinical features in Mrs Thomas in 1999 allowed a diagnosis of probable Multiple Sclerosis based on the Poser Criteria, I would have also performed a CSF examination to check for oligoclonal proteins.
2. Further, Mrs Thomas requests that based on your own professional practice, experience and conduct, without reference to the criteria for diagnosing Multiple Sclerosis in 1999, would you have diagnosed Mrs Thomas with probable MS based solely on the tests performed and the clinical findings by Dr Hodgkinson? Would you please answer this question as distinctly as possible from a peer perspective, with reference to your own practices and perceived expectations of other professionals within your chosen profession?
These are not questions that I could answer precisely. The Poser Criteria were guidelines in place at that time and I would have followed these criteria in making a diagnosis. As I emphasised in my earlier report, ail criteria of this type have a sensitivity and specificity for the diagnosis which is not 100%. If I had diagnosed Mrs Thomas with probable Multiple Sclerosis at that time I would have emphasized the uncertainty that is by definition contained in this diagnosis. That is, I would have emphasized the probable nature of the conditions as distinct from a definite or unequivocal diagnosis. I would have emphasized the need for clinical and radiological follow up over time which may either increase or reduce the likelihood of this diagnosis depending on outcomes and results.
3. Please find enclosed a letter received by Mrs Thomas from the MS Society regarding the Poser Criteria. Mrs Thomas states that none of her tests results showed there were any lesions and asks that you please give your opinion on how Dr Hodgkinson came to her diagnosis if she was following the correct criteria at the time.
In this instance the diagnosis of probable Multiple Sclerosis was on the basis of one attack (optic neuritis), clinical evidence of one lesion(reduced visual acuity) and para-clinical evidence of another separate lesion(abnormal somatosensories from the lower limbs).
13The handwritten letter referred to in Dr Todman's first report became part of Exhibit 3 on the hearing of the motion. The letter is short and I shall set out in full the body of the letter:-
Thank you very much for asking me to see Carol Barker. She has symptoms suggestive of MS. In addition her VER's and her SER's are delayed. Her MRI is normal. I believe these changes are consistent with probably Multiple Sclerosis. I would like shortly to give her some methylprednisolone but believe her depression & agitation needs to be treated prior to this. I have arranged to see her in 1/12. I hope Dr McLaren will be able to assist.
14The letter and other evidence shows that the questions posed for Dr Todman were incorrect in their reference to a diagnosis of multiple sclerosis. There never was any such diagnosis. The diagnosis was probable multiple sclerosis. However, Dr Todman was aware of that, as his answers show.
15The two reports of Dr Todman are the only reports served by the plaintiff.
16The plaintiff resides in Queensland. She cannot afford a solicitor. She has no access to Legal Aid. She sought the assistance of the Court to obtain pro bono representation and on 5 December 2012 Garling J directed the Registrar to attempt to obtain assistance. Unfortunately, no practitioner volunteered to assist and the Registrar terminated the referral in accordance with the rules. The plaintiff has no prospect of obtaining legal representation.