Elysee v Ngo

THE CLAIM

1. The plaintiff is a 63 year old man who claims to have suffered an injury in consequence of a negligent act of his general practitioner, the defendant. Originally seven general practitioners, all practicing from the Bankstown Medical Practice were sued in these proceedings. As a result of consent orders after the commencement of the hearing, all defendants except the current defendant were released, on the basis of the Consent Judgments in favour of each defendant, with each party to pay its own costs. An interlocutory judgment records various aspects of these proceedings, which I shall come to in due course.
2. The claim brought under the second further Amended Statement of Claim continued against the only remaining defendant ("the defendant") in the absence of the remaining defendants. The second further Amended Statement of Claim records that the plaintiff first consulted the defendant on 20 July 2009, as the plaintiff's blood pressure was high.
3. The plaintiff continued to see the defendant during 2010 and 2011, and registered elevated glycated haemoglobin scores. On 15 February 2012 the plaintiff consulted the defendant complaining of nausea, bloating, flatulence, fatigue and body aches. The defendant tested the plaintiff for blood pressure, creatinine and HbA.
4. On 12 April 2012 the plaintiff ordered more blood tests which showed creatinine was elevated, his eGFR was low, and his urine was normal. A CT scan was ordered by the defendant on 16 April 2012. It revealed the possibility of chronic renal disease, and this was diagnosed by the defendant and the plaintiff was then referred to the emergency department at Liverpool Hospital.
5. On 18 April 2012 the plaintiff changed general practitioners and attended a Dr Wilhelm Anell at the San Souci Medical Centre. Thereafter the plaintiff has been subject to a regime of treatment and various specialists. However, the critical matter for the purposes of this litigation is the fact that the risk of renal disease from both hypertension and diabetes, from which the plaintiff suffered, was a well recognised risk, and a risk that the defendant ought to have known. It is alleged that the defendant was negligent in that he failed to closely monitor the plaintiff's renal function.
6. Renal disease is monitored by the serial measurement of serum creatinine, known as the eGFR measurement, and by measuring the amount of protein in the urine microalbumina as its proportion of creatinine concentration. The particulars of negligence allege that the defendant failed to adequately monitor the plaintiff's condition, failed to refer the plaintiff for earlier treatment of possible renal disease, failed to adequately monitor the plaintiff's diabetes, and failed to adequately refer the plaintiff's diabetic condition for specialist treatment.
7. The plaintiff claims that in consequence of such negligence, he has been subjected to a progressive onset of his kidney failure. The evidence establishes in the case that the plaintiff's current kidney is operating at 14%, and once it reaches 10% he will require to be on dialysis.
8. The claim set out in para 40 of the second further amended claim alleges: "As a result of the delay in the plaintiff obtaining adequate treatment of his renal disease on or shortly after 20 July 2009, the plaintiff's diabetes and hypertension were suboptimally controlled, up until he was referred to a renal physician in July 2012. But for the delay, the progression of the plaintiff's kidney failure would have been slower, and the plaintiff may not have developed cardiac issues that he has developed."

THE DEFENCE

1. The defendant has denied liability. The defendant states that the plaintiff was diagnosed with diabetes in 2004. The defendant admits that the plaintiff had elevated glycated haemoglobin measurements when the plaintiff was under his care, but otherwise does not admit the allegations of negligence. In answer to the whole of the claim, the defendant says that at all material times he acted in accordance with what was widely accepted by peer professional opinion as competent professional practice, pursuant to s 5O of the Civil Liability Act 2002 (NSW).
2. In further answer to the second further amended statement of claim, the defendant says that the plaintiff's claim is not maintainable in that it had been brought after the expiration of the limitation period set out in the Limitation Act 1969 (NSW) and is therefore statute barred.
3. Lastly, the defendant says that if the plaintiff sustained the injuries, loss or damages alleged, they were caused or materially contributed to by his own negligence. The particulars of contributory negligence are stated to be; 1. failing to take reasonable care for his own health; 2. failing to attend for specialist review pursuant to referrals given to him; 3. failing to regularly conduct home testing of his blood sugar levels; 4. failing to take medication in accordance with medical advice given, and; 5. failing to heed the advice of his treating general practitioners.
4. The particulars to the further amended statement of particulars refers, in respect to the injuries received, to the acceleration of chronic kidney disease and psychological injury. The ongoing and continuing disabilities are described as decreased kidney function, severe and chronic hypertension, anaemia, pancytopenia, hypercalcaemia, headache, loss of enjoyment of life, loss of confidence and socially withdrawn.
5. Before departing from the pleadings, the Court refers to a decision of a interlocutory nature given on 9 May 2018 in these proceedings concerning whether the issues to be determined in the proceedings have already been determined as the result of the findings of a conclave of experts. The Court held that the specific issue concerning whether there was negligence in the postponement of the plaintiff's treatment for renal disease was vital and contributed to his condition, was not defined the questions put to the conclave.

MEDICAL TERMS

1. For the convenience of the parties, the Court will set out in tabulated form hypertension readings showing and classifying the systolic and diastolic readings for normal and elevated risk. These two tables will be incorporated in the decision. Table A: DATE CREATININE EGFR 16-04-2009 120 (40-120) 54 (30-59) * 27-04-2009 87 (56-120) 84(>60) ** - Exhibit 3 01-03-2010 100 (40-120) 68 (60-89) *** 17-08-2010 95 (40-120) 69 (60-89) *** 15-02-2012 110 (40-120) 60 (60-89) ***

*suggests moderate chronic kidney failure ** does not exclude kidney disease ***should be interpreted with caution due to change in laboratory test NORMAL Creatine 40-120 EGFR: If >60 is normal If =180 >=110 Isolated systolic hypertension >=140 <90

1. The Court will also be referring to estimated glomerular filtration rate, otherwise known as "eGFR". According to information provided to the Court by Kidney Health Australia, eGFR is as follows: "eGFR stands for the estimated glomerular filtration rate. The glomerular filtration rate measures how well your kidneys filter the waste from your body and is the best overall measure of kidney function. It helps to determine if there is any kidney damage. If the filtration rate is low, the kidneys are not working properly. Normal filtration in young adults is about 90 to 100 millilitres every minute. It is difficult to calculate the exact rate at which your kidneys are working, so a special formula has been developed to estimate your GFR (eGFR). This formula uses your age, gender and the level of creatinine in your blood estimate for your GFR. Creatinine is a waste product made by the muscles. It is usually removed from the blood by the kidneys before passing out of the urine. When the kidneys are not working well more creatinine stays in your blood."
2. The information sheet continues: "Your eGFR result helps your doctor to determine how well your kidneys are working. Your doctor may also test for other signs and conditions, including albumin in your urine, albuminuria, blood in the urine, haematuria, high blood pressure and diabetes. This helps to decide if you have chronic or longer term conditions causing kidney disease." Table C: Stratification of cardiovascular risk in hypertension to quantify prognosis The risk of cardiovascular disease due to hypertension is augmented by the present of other risk factors. That augmentation is described in the table below: Additional risk factor(s) Normal BP High normal BP Mild hypertension Moderate hypertension Severe hypertension No other risk factors Low risk Low risk Average risk Moderate risk High risk 1 or 2 risk factors excluding diabetes Low risk Low risk Moderate risk Moderate risk Very high risk 3 or more risk factors or target organ damage or diabetes mellitus Moderate risk High risk High risk High risk Very high risk Associate clinical conditions High risk Very high risk Very high risk Very high risk Very high risk

Table D - Summary of Medical Terms: Blood Pressure Blood pressure readings normal 120-80 pre high blood 140-90 high blood pressure 140-90. Readings mean systolic pressure/diastolic pressure. Blood sugar levels Normal 3.9-5.5 MMOL/L (while fasting) if not fasting and not diabetic normal less than 6.9 MMO/L. HbAlc tests (haemoglobin tests for diabetes) levels of 6.5 or higher indicate diabetes. Kidney Function Tests eGfr scores estimate glomerular filtration rate normal greater than 90 ML/MIN/1.73M² Creatine levels UMOL/OL (H) (40-120) Raised levels of creatine showing impaired kidney function or kidney disease. Other Terms: Albuminuria - presences of albumin (protein) in the urine. Haematuria - blood in urine. Proteinuria - high levels of proteins in the urine. Hypoglycaemia - low blood glucose levels (below 4 MMOL/L) Focal Segmental Glomerulosclerosis - a condition whereby the tiny filtering units inside kidney (glomeruli) are damaged and scarred. Hyalinosis - damage revealed in the routine staining indicating kidney damage caused by hypertension. Cryoglobulinemia - a medical condition in which the blood contains large amounts of cryoglobulins - proteins (mostly immunoglobulins themselves) that become insoluble at reduced temperatures.

HISTORY OF THE PLAINTIFF

1. The plaintiff gave evidence that he was born in Cairo, Egypt in 1953. He qualified as a mechanical engineer in Egypt and came to Australia in about 1972. Both his parents are deceased and he is the youngest of six siblings, three of whom have already passed away. Upon arrival in Australia the plaintiff worked in Telstra and at Comalco. He worked principally as a control supervisor in the Sydney area. In 1982 he commenced to work as a taxi driver and he performed such work, according to his evidence, up until 2012. In 1983 he had been diagnosed with a skin condition of psoriasis. He testified that he has a very severe condition, which often flares from time to time, especially if he is exposed to sunlight. He took medication to suppress the illness. He had been on medication from 1993. The plaintiff also discovered in 1988 that he had hepatitis C. He was referred to a haematologist, Professor George. He was prescribed treatment, namely the drug, interferon. It appears that the hepatitis C was contracted when he was a child in Egypt.
2. In 1991 the plaintiff married his wife, Anne, and divorced in 1994. The plaintiff has three adult children. The plaintiff lives alone. For his psoriasis the plaintiff consulted various practitioners and commenced attending the Bankstown Medical Practice in 2002. In May 2003 he was diagnosed with type 2 diabetes mellitus. He was prescribed the drug, Diamicron, for that illness. Later that year, in December 2003, he was prescribed Loniten for his hair loss. However, that medication was no longer manufactured and he ceased such treatment. The psoriasis has continued and is incurable. He has seen many specialists and they have provided various ointments for the plaintiff.

TREATMENT BY DEFENDANT

1. The plaintiff first saw Dr Ngo on 20 July 2009. Between that date and the 16 April 2012 the chronology shows that he saw Dr Ngo on 34 occasions. Many of those instances were not related to treatment for a medical condition, but rather related other issues. For example, the plaintiff was required, because of his illness, to receive social services for a short period of approximately two years. The plaintiff also had been assaulted by a taxi manager in the course of his work, which resulted in some injury and court proceedings against the offender. The plaintiff also appears to have had some history, although it is not detailed, of depression.
2. I turn now to the readings for blood pressure, which were taken by Dr Ngo on various occasions during the plaintiff's visit to Dr Ngo. According to the readings, the plaintiff always had readings above average and above normal. The average for all of the readings is 152 over 95, where normal is at or below 120 over 80. I incorporate into the decision the blood pressure readings taken by the defendant. Blood Pressure Measurements Taken by Dr Ngo 20 Jul 2009 Blood pressure Systolic - 152 TNG Diastolic - 95. 2 Nov 2009 Blood pressure Systolic - 157 TNG Diastolic - 89 Blood pressure 26 Oct 2010 TNG Systolic - 151 Diastolic - 97 7 Mar 2011 Blood pressure Systolic - 156 TNG Diastolic - 104 Blood pressure 11 Jul 2011 TNG Systolic - 182 Diastolic - 96 12 Jul 2011 Blood pressure Systolic - 169 TNG Diastolic - 89 18 Jul 2011 Blood pressure Systolic - 154 TNG Diastolic - 90 Blood pressure 7 Aug 2011 TNG Systolic - 142 Diastolic - 90 20 Oct 2011 Blood pressure Systolic - 152 TNG Diastolic - 90 26 Dec 2011 Blood pressure Systolic - 177 TNG Diastolic - 106 4 Jan 2012 Blood pressure Systolic - 136 TNG Diastolic - 82 15 Feb 2012 Blood pressure Systolic - 153 TNG Diastolic -92 19 Feb 2012 Blood pressure Systolic - 136 TNG Diastolic - 81

1. Significantly readings were taken of creatinine and eGFR on 16 April 2009 by Dr Ngo. The readings showed that there was moderate chronic kidney failure as at 16 April 2009. The readings thereafter fluctuated but for present purposes the plaintiff relies essentially on the failure of the practitioner to refer him for specialist treatment resulting from 16 April 2009 readings.
2. When the first blood pressure readings were taken by Dr Ngo in April 2009 the defendant requested the plaintiff to return for further blood pressure tests in the period from one to two weeks. However, the plaintiff did not return until 17 October 2009, that is almost six months later. The plaintiff gave, as the reason for his non-return, that he was tired and he was sick.
3. It appears that the plaintiff had moved his residence from Georges Hall near Bankstown, where Dr Ngo practised, to Sans Souci. After April 2009 the plaintiff consulted a medical practice which was closer to his home and saw a Dr Youssef. He saw other general practitioners during this period. As I have mentioned, there was an assault at his work on or about 18 October 2010 and in 2011 the plaintiff consulted a psychologist as a result of the assault. In 2011 or 2012 the plaintiff's then second wife Ann suffered a stroke and was in bad health. That also became a stressor in his life.
4. The medical history shows that Dr Youssef of the Ramsgate Medical Practice did not know that the plaintiff was also consulting practitioners at the Bankstown Medical Practice. Whether this would have made any impact is doubtful. The fact is the plaintiff did return to the Bankstown Medical Practice and continued to see Dr Ngo. This is so, even though in 2010, the plaintiff, on an admission to St George Hospital, stated that Dr Youssef was at that time to be his regular general practitioner.
5. The plaintiff's medical conditions were clearly very disabling to him. He continued to have trouble with psoriasis and generally he has been a very unwell person. Prior to February 2012 the plaintiff experienced symptoms of diarrhoea, nausea and vomiting. It was then that he again consulted the defendant and was referred to a CT scan. The plaintiff saw the defendant for the last time on 16 April 2012 when the results of the CT scan were available which indicated he had serious renal disease. Thereafter the plaintiff continued to see Dr Youssef. He also saw Dr Anell and on 17 July 2012 Dr Anell referred the plaintiff to Dr Mangos, who I shall refer to in due course.

MEDICAL EVIDENCE

1. I shall now refer to the relevant medical evidence. In this proceeding there has been considerable reference to medication prescribed and to a number of doctors which the plaintiff has consulted. However, these matters do not detract from the principal claim of the plaintiff. For example, the plaintiff has been referred for a heart and hypertension condition to various specialists including Dr Rohl for diabetes and Dr Zekry, Herpetologist. The drugs that have been referred to is Diamicron and for his hypertension Sevikar.
2. The Court will refer to the medical evidence by way of background to the conclaves which have taken place in these proceedings.

PLAINTIFF'S MEDICAL EVIDENCE

1. Associate Professor Peter R Clyne has provided a report in which he has set out in detail his conclusions. He states in his report that at 30 October 2016 the tables, which had been incorporated into evidence. He also has incorporated a stratification for cardiovascular risk in hypertension to quantify prognosis. In respect of hypertension, he states, "Hypertension is diagnosed by the measurement of blood pressure." He continues: "Hypertension caused by renal vascular disease, renovascular hypertension should be suspected when firstly, there is an acute elevation of serum creatinine of at least 30% after the administration of an angiotensin converting enzyme inhibitor or an angiotensin II receptor blocker. (2) Moderate to severe hypertension in a person with diffuse arteriosclerosis. (3) Moderate to severe hypertension with recurrent episodes of pulmonary edema. (4) Onset of grade 2 hypertension after the age of 55 years. (5) The presence of abdominal bruit."
2. In respect of renal impairment Associate Professor Clyne stated: "Since both hypertension and diabetes are known to cause renal disease, peer general practitioners practising at an acceptable standard, monitor the renal function in patients who have either of those diseases. Since the co-existence of hypertension and diabetes causes an augmented potential deleterious effect on the kidney. Here general practitioners practising at an acceptable standard, maintain an especially close brief on the renal function of patients who suffer from both conditions."
3. He continues: "According to the clinical records available to me, protein was first detected in Mr Elysee's urine by dip stick on 27 May 2003 at a level described as 'plus'. It was checked a year later and on 1 June 2004 when no protein was detected by dip stick, the next examination of the urine for protein by dip stick, occurred two years later on 25 July 2006, when it was described as '+++'. Dip stick tests thereafter generally continued to show protein. Here general practitioners practising at an acceptable standard would agree that protein detected in urine at the level of '+' and above is abnormal and may indicate the presence of renal disease."
4. In his conclusions, Associate Professor Clyne stated: "In the matter of monitoring of diabetes control, the evidence of the clinical record does not support a contention that Bankstown Medical Centre / Primary Health Care ordered and reviewed a glycated haemoglobin levels at a frequency that would have been done by peer practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to monitor " In the matter of treatment of diabetes, the evidence of the clinical record does not support a contention that Bankstown Medical Centre/Primary Health Care referred Mr Elysee to a dietician for dietary management of his diabetes, as would have been done by peer practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to refer. In the matter of treatment of diabetes, the evidence of the clinical record does not support a contention that Bankstown Medical Centre/Primary Health Care provided Mr Elysee with dietary advice as part of the dietary management of his diabetes, as would have been done by peer practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre / Primary Health Care failed to treat. In the matter of management of hypertension, the evidence of the clinical record does not support a contention that Bankstown Medical Centre/Primary Health Care measured and reviewed Mr Elysee's blood pressure at a frequency that would have been done by peer practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to monitor. In the matter of the management of renal function, the evidence of the clinical record does not support a contention that Bankstown Medical Centre/Primary Health Care measured and reviewed the protein level in the urine of Mr Elysee at a frequency that would have been done by practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to monitor. In the matter of management of renal function, the evidence of the clinical record does not support a contention that Bankstown Medical Centre/Primary Health Care acted upon the presence of protein in the urine of Mr Elysee on those occasions when it was observed as would have been done by peer practitioners practising at an adequate standard. Therefore, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to investigate. Similarly, on the balance of probabilities, Bankstown Medical Centre/Primary Health Care failed to refer. Consequently, on the balance of probabilities, the general practitioners at the Bankstown Medical Centre/Primary Health Care acted in a manner that, at the time the service and care were provided, was not widely accepted in Australia by rational peer professional opinion as competent professional practice in Australia.
5. Professor Clyne provided a supplementary report dated 12 September 2016. Relevantly, he stated, "therefore, according to the evidence of the clinical record, Mr Elysee's blood pressure was inadequately controlled from 7 August 2007 until 19 February 2012."
6. According to the clinical record, the general practitioner who was managing Mr Elysee's blood pressure and recording the readings from 26 May 2009 until 16 April 2012 was Dr Trung Hu Ngo. Competent general practitioners would agree that where a general practitioner is unable to control adequately a patient's blood pressure, he or she has a duty to either determine the cause of a condition's refractoriness to treatment or if he or she is unable to do so, to refer the patient to an appropriate specialist.
7. According to the clinical record, Dr Ngo referred Mr Elysee to the emergency department on 16 April 2012 in the matter of Mr Elysee's abdominal symptoms. The evidence of the clinical record does not support a contention that Dr Ngo referred Mr Elysee to an appropriate specialist for the management of his hypertension. The evidence of the clinical record does not support a contention that Dr Ngo was inquiring about and monitoring Mr Elysee's home blood sugar levels. Peer general practitioners would agree that a patient with diabetes should have their home blood glucose readings reviewed regularly by their general practitioner. Associate Professor Clyne stated: "The treatment provided by Dr Trung Hu Ngo to the plaintiff was not in accordance with the widely accepted treatment and care in Australia by rational general practitioners practising at a competent level of practice."
8. At the risk of repetition, I state also an extract from his supplementary report: "Competent peer general practitioners are aware that the coexistence of diabetes and hypertension greatly increases the risks of many of the complications of both diseases, namely the cardiovascular complications and their sequelae. Furthermore, they are aware that diabetes and hypertension form part of a complex generally called 'metabolic syndrome' which is associated with lipid abnormalities that further contribute to the complications of both. Competent peer general practitioners are also aware that both diabetes and hypertension may each cause their own forms of kidney failure, both of which contribute to the worsening of hypertension and renal failure. Consequently, competent peer general practitioners will strive to control the blood pressure within tight parameters and maintain diabetic control within the accepted parameters for the patient. Furthermore, they will treat any lipid abnormalities, help the patient to maintain weight within an acceptable range, encourage mobility and exercise as practicable, and undertake patient education so that he or she is properly informed and can have some control over their disease."
9. He continued: "Where diabetes coexists, competent peer general practitioners will prefer to treat hypertension with drugs that act directly upon the renin‑angiotensin system which was believed to reduce the likelihood of diabetic nephropathy."
10. Associate Professor Clyne also stated that in his opinion protein in the urine was a "red flag" for diabetic neuropathy.

DR STEPHEN THORNLEY

1. Dr Stephen Thornley provided a medical report of 17 June 2016. Dr Thornley is a consultant endocrinologist. I should note that Associate Professor Clyne is a general practitioner of many years, namely 39 years, experience. Dr Thornley in his report relevantly stated: "Hypertension was diagnosed in 2009 but was never flagged as an issue with Mr Elysee until he changed general practices. He was commenced on antihypertensive therapy in the form of Olmetec and Candistan, which he did not tolerate as his psoriasis flared. He was troubled with chronic headaches from around 2010, until his blood pressure was brought under control after review by Dr George Mangos, renal physician, as outlined below."
2. Mr Elysee's blood pressure was checked on a total of 31 times between 2002 and 2012. He noted that the blood pressure started to increase in August 2007, when a couple of blood pressure readings of 130 over 90 were noted. In January 2009 a blood pressure of 160 over 90, and in July 2009 152 over 95. Dr Thornley refers to the drugs he was provided by the practice, and stated as follows: "Blood pressure seemed to start to increase in 2006, and in the period 2009 to 2011 was consistently poorly controlled. The average blood pressure reading over that time measured on 16 occasions was 152 over 98, the target being 135 over 80."
3. Kidney function was measured reasonably regularly between 2002 to 2012, but kidney function seemed to start to deteriorate around February 2006, when an eGFR of 72 was noted. He continued: "In January 2009 eGFR was noted to be 69, when repeated two weeks later had dropped to 54, which is in keeping with stage 3 of chronic kidney disease. The eGFR in February 2012 was known to be 60, and in April 2012 this had dropped to 48, which is in keeping with stage 3 chronic kidney disease."
4. Dr Thornley refers to atrial fibrillation which commenced 12 months ago, which he considered was due to long term, poorly controlled hypertension. In his opinion, Dr Thornley stated as follows: "The management of Mr Elysee's type 2 diabetes mellitus under the care of the general practitioners at Bankstown Medical Centre/Primary Health was quite suboptimal and not that expected of a general practitioner. It would appear that review of the diabetes was sporadic, with no obvious care plan or adherence to standard diabetes guidelines as outlined by various professional societies, including the Royal Australian College of General Practitioners."
5. He stated also: "There is no mention in the notes that Mr Elysee was referred to a diabetic educator or a dietician, which is again a standard care in the management of a patient with type 2 diabetes mellitus. A review by these health professionals would have ensured that diet was optimal and that Mr Elysee had adequate knowledge about managing diabetes."
6. He was referred to an endocrinologist only once in 2006, who noted poor diabetic control and elevated blood pressure. However, follow up with Dr Tidmarsh or any other endocrinologist was not recommended and this did not happen until he changed general practitioners in 2012. For the present purposes the most significant comment by Dr Thornley is as follows: "With respect to Mr Elysee's mortality and morbidity, substandard care by his previous general practitioners, the Bankstown Medical Centre/Primary Health, of both the type 2 diabetes mellitus, but also the blood pressure and failure to appropriately act upon the development of chronic kidney disease and protein urea have resulted in Mr Elysee having stage 4 to stage 5 chronic kidney disease, coronary artery disease, atrial fibrillation and depression. If the diabetes and hypertension had been appropriately controlled, at least from the period of 2006 onwards, then it is highly likely that kidney function would be much improved compared to what it is now and that Mr Elysee may not have developed the cardiac issues he has developed."

DR GEORGE MANGOS

1. Dr George Mangos is a specialist in nephrology, hypertension and obstetric medicine. He was consulted at the request of Dr Wilhelm Anell on 17 July 2012, after the plaintiff had ceased seeing the defendant. Dr Mangos has provided many reports which relate to the plaintiff's medical condition, the last report being dated 4 April 2018. In that report he states, "Sam" - that is the plaintiff - "is now in stage 5 CKD with a GFR of 14ml/min. The recent abrupt decline from February to March is unusual and, hopefully, there will be some reversibility." He then refers to medication which the plaintiff had been prescribed. Dr Mangos' reports generally confirm that the plaintiff's renal disease has significantly advanced.

DR JEFF BERTUCEN

1. Dr Bertucen is a consultant psychiatrist. He saw the plaintiff on 8 June 2016. The history of the plaintiff's condition was referred to. He noted that the plaintiff denied suffering any pre-existing or underlying psychiatric conditions, but he states that he was "being driven mad" for several years by severe psoriasis, which was covering about 50% of his body surface at any given time. He states that, in consequence, the plaintiff's was chronically irritable and abrupt, that he had worked as a taxi driver at night shift owing to the aggravation of his condition by sunlight. He notes in his report: "In 2012, after changing his new general practitioners at Sans Souci Medical Centre, Mr Elysee became significantly depressed after the extent and timeframe of the alleged medical negligence was made apparent to him. He felt devastated that a decade of his life had been 'stolen' from him and became despairing and preoccupied about a sense of foreshortened life. He was horrified by the potential prospect of dialysis and internally made a resolve to suicide rather than undergo this process. Fortunately, with the recent stabilisation of his renal condition, dialysis is not a prospect for the time being."
2. In his conclusion Dr Bertucen considered that the plaintiff was suffering a chronic adjustment disorder, with features of depressed mood and anxiety currently in partial remission. Dr Bertucen attributed such as follows: "This led, in my opinion, to an emotional decompensation, which contributed secondarily to his withdrawal from regular gainful employment, financial hardship and the end of his second marriage."
3. He considered the prognoses was guarded.

CLINICAL NOTES

1. The clinical notes of the practice have been tendered. They confirm that in 2009, between July and December, there were three visits to Dr Ngo, in 2010 six visits, in 2011 22 visits and in 2012 six visits between 1 January 2012 and 16 April 2012. The patient medical history of the plaintiff has also been provided to the Court and it confirms the first consultation with Dr Ngo took place on 20 July 2009. In the entry against that date there is a record, "Wants BP to be checked. History of DM stress, plus, plus. Wants repeat scripts. Was told to try Diabex XR. Home BSL. High BP. Repeat BP in one to two weeks." According to the record the next visit was on 28 September 2009. I shall now deal with a medical report provided the defendant.

DR JOHN R BURKE

1. Dr John R Burke, a renal physician, refers to the fact that at certain stages the plaintiff's medical condition seemed to stabilise. In his report of 21 August he states, "he", that is the defendant: "was prescribing an angiotensin II blocker for his blood pressure, which is a recognised agent for the treatment of hypertension with diabetes. At times there was evidence of poor compliance to medication and this would have contributed to difficulty in obtaining adequate control. During this period there were other medical problems with anxiety and depression and a physical assault while working as a taxi driver. At the end of the period he had obtained satisfactory blood pressure control. On his first consultation with Dr Ngo, changes were made to obtain better diabetic control. Regular changes with other agents were introduced. His diabetic control was also dependent on his adherence to a strict diet, weight control and blood glucose monitoring. He had previously been seen a diabetic clinic for this plan of management. If there is poor adherence to these measures, then this would cause an elevated HbA1c. Dr Ngo was regularly making changes to the diabetic medications and HbA1c was less than eight in August 2011, indicating that adequate control was being obtained. His renal function was normal during this period. On the last occasion when seen by Dr Ngo in April 2012 he had abdominal symptoms of bloating for one week and vomiting. This may have caused the increase in serum creatinine to 130 umol/l GFR 48. He was referred to hospital for further follow up."
2. Dr Burke considered that the defendant managed the hypertension and diabetes as a competent medical practitioner between 20 July 2009 and April 2012.

CONCLAVE OF EXPERTS

1. Because of the medical issues involved, the Court directed that a conclave of experts be convened to assess the medical evidence.
2. On 30 January 2018, the Court ordered that conclaves be held and be completed by 13 April 2018, and that reports setting out the areas of disagreement and agreement be provided by 27 April 2018. In accordance with such orders, two conclaves were held. One conclave compromised a joint report of the endocrinologists and renal physicians which was held on 30 April 2018, and the report was prepared on 2 May 2018. I shall refer to this report as the causation report.

CAUSATION CONCLAVE

1. Attending the conclave was Dr Stephen Thornley, endocrinologist, by telephone; Professor Steven Boyages, endocrinologist; Dr John Burke, renal physician, by telephone; Professor Zoltan Endre, renal physician. Various questions were formulated by the respective legal advisers for submission to the expert panel. In respect of causation, one question was asked of particular significant; namely, the nature and cause of the renal disease of the plaintiff. The experts agreed as follows: "The experts agree that the plaintiff's renal disease is caused by FSG. The probable cause of the FSG is longstanding hepatitis C. There may have been additional contributions to chronic kidney disease from his hypertension and possibly from diabetes, although this does not seem, given the findings of the biopsy referred to in para 4.105 of annexure A."
2. In respect to the usual progress for the renal disease, the experts stated as follows: "The experts agree that progress is variable, depending on aetiology and also on the stage of the disease. Severe renal disease is likely to progress to end stage, while milder degrees of renal failure may stabilise if the underlying cause can be reversed."
3. Two further questions were asked, but without the consent of the plaintiff's solicitors, namely questions 6.20 and 6.21. However, question 6.19 states: "Did any act or omission of the plaintiff materially contribute to his renal disease?" The answer is as follows: "The experts agree that the answer to that question depends on the extent of the plaintiff's compliance with blood pressure medications. Beyond repeating their answer to question 6.21 above, the experts are not able to be more specific."
4. Question 6.12 states, "Did any act or omission of the plaintiff materially contribute to this condition?" That is the condition of hypertension. The experts agree that no act or omission materially contributed to him acquiring hypertension. However, they continued: "The experts further agree that as to the ongoing control of the plaintiff's hypertension, there appear to have been times when his compliance with medication was suboptimal, as evidenced by references to his non‑compliance in the notes and reports to the general practitioners and the specialists. The assumed fact, para 4.112 of annexure A, that he was admitted to St George Hospital on 17 August 2013 with blood pressure 235 over 115, which settled to 140 over 80 during admission without any change to his blood pressure medication, points to non‑compliance with medication as to the cause of any lack of control of his blood pressure."

LIABILITY CONCLAVE

1. A second conclave took place on 2 May 2018, being a joint report of the general practitioners and renal specialists. Attending this conclave was Associate Professor Peter Clyne, Dr Simon Young, Dr Vincent Roche, and Dr John Burke attending by telephone. Various questions were put to the attending specialists. Without repeating all of the findings, it is clear that there was a divergence of opinion concerning the treatment and management which was provided to the plaintiff.
2. In respect of treatment by the defendant, Dr Burke expressed the opinion that the defendant managed the plaintiff's hypertension in the period 20 July 2009 and April 2012 in the manner expected of a competent medical practitioner. Associate Professor Clyne believed that the defendant fell short of acceptable standards of care because he failed to properly investigate the reasons the plaintiff's blood pressure was poorly controlled. He considered that the plaintiff should have been informed about the importance of taking his medication, and made to understand the significance of non‑compliance.
3. He states that the role of a general practitioner goes beyond prescribing the correct drugs; that the general practitioner plays other roles, as manager of the patient's overall health, such as counsellor, advocate and encourager. He states that the plaintiff should have been referred for specialist intervention if the defendant was unable to achieve blood pressure control. He considered that the patient's non‑compliance did not give a general practitioner the right to deny the patient opportunities to overcome that non‑compliance for better health care. Such opportunities included referral to a specialist, whether or not the general practitioner believed the patient will take advantage of the referral.
4. In respect of diabetes, the experts again were in disagreement. Dr Burke considered that the defendant had acted as a competent medical practitioner. However, Associate Professor Clyne disagreed, observing that the clinical records did not demonstrate that the defendant checked the blood sugar levels or inquired from the plaintiff why he was not doing so. He should have checked the plaintiff's weight and counselled him about diet and exercise.
5. For the present proceedings, the most important statement from Dr Burke relates to the question of whether the defendant's care and treatment of the plaintiff was reasonable and appropriate having regard to the clinical records. Again, Dr Burke and Professor Clyne disagreed. Dr Burke believed that the defendant was appropriately making changes to the plaintiff's medication, and would infer that he would have been discussing with the plaintiff the importance of diet and glucose, and blood glucose monitoring and other diabetes control measures.
6. Dr Burke states that the referral to the endocrinologist and to the Diabetes Clinic indicated that the defendant was alive to the problem of managing the diabetes. However, Dr Burke believed that the defendant's control of the plaintiff's diabetes was sub optimal, and the poor control of the diabetes was significantly related to his compliance problems. Of greater significance, Dr Burke then added, as per the report of the conclave: "Dr Burke believes the plaintiff's multiple medical problems made it desirable to have referred the plaintiff to other specialists (endocrinology, nephrology and maybe cardiology) but in the long term it wouldn't have been [sic] made a difference to his clinical path, as he was going to progress to chronic renal failure. It may have slowed it a bit, but it was set in place that he was going to progress to end stage renal failure anyway."
7. Associate Professor Clyne disagreed with the adequacy of the plaintiff's management. The report states: "He believes Dr Ngo failed to refer, failed to take an adequate history, failed to monitor and failed to investigate and follow up. He should have referred him to the specialists who were identified by Dr Burke, even if he had a suspicion the plaintiff would not have complied. Furthermore, the notes do not indicate that a competent management plan has been devised or implemented by Dr Ngo."
8. As to non-compliance with medication, all the experts agree that the plaintiff was non-compliant with medication and in attending referrals.

ORAL EVIDENCE

1. The plaintiff provided oral evidence and was extensively cross examined. The defendant did not give oral evidence.
2. During the course of the hearing Dr Thornley gave evidence. That evidence was given on the voir dire in relation to the initial application for dismissal of six of the defendants. However, it was re-tendered in the principal proceedings against the current defendant.
3. The question was asked of Dr Thornley concerning the final observations that were asked of experts in the causation report. The question related, in summary, to whether the plaintiff's CKD, hypertension, chronic artery disease, type 2 diabetes mellitus, chronic hepatitis C would be materially different today if different care had been provided. This question had not been agreed to by the plaintiff's solicitors.
4. Dr Thornley, in respect of that issue, said: "There was certainly debate about this question and it was my opinion that the development of renal failure may have been delayed by a couple of years, by about two years, but the two nephrologists - and I defer to them in this because it's their area of expertise - I didn't think that was significant, but - and I guess I defer to them because they're nephrologists, but I do think certainly would have been helpful to have referred this matter a bit earlier to a kidney physician. It may have given him a little bit of extra mileage in terms of development of end stage kidney failure."
5. Dr Thornley agreed that the development of the renal disease was not caused by any act or omission of the defendant's, but he adhered to his opinion concerning the fact that the plaintiff may have been able to delay the onset of his end stage by up to two years. That is the evidence upon which the plaintiff relies in order to establish his claim of negligence. The Court notes also that early reports had been tendered, going back as far as 1999, when the hepatitis of the plaintiff was diagnosed, as evidenced by the report of Professor Jacob George, dated 12 March 1999. However, it is unnecessary to refer to that matter further in detail. The Court also notes that a report was made by Associate Professor Amany Zekry from the St George Hospital, Department of Gastroenterology and Hepatology, dated 17 April 2013, which confirms the illnesses which have been above referred to.

DEFENDANT'S SUBMISSIONS

1. The defendant draws the Court's attention to the requirements of s 5E of the Civil Liability Act 2002, which requires the plaintiff to bear the onus of proving on the balance of probabilities any fact relevant as to the issue of causation. The defendant also relies on the provisions of s 5O of that Act concerning the peer professional requirement in respect of negligence for professionals. The defendant also relies upon the provisions of 5D. The defendant has raised many issues which, to the Court's mind, do not substantially detract from the critical evidence which has been provided by Dr Thornley, by Associate Professor Clyne and ultimately by Dr Burke.
2. First, the defendant refers to the fact that plaintiff consulted numerous general practitioners. This is not of itself of any moment because it is not suggested that any other practitioner was negligent in the way in which the defendant has been negligent. If is clear that the plaintiff has not been a well man for many years, commencing with his diabetes, the psoriasis, the onset of hepatitis C and his high blood pressure which, according to the unchallenged evidence, was always high and above the requisite standard.
3. The defendant submits that the plaintiff was non-compliant with his medication. That appears to be the case, but there appear to be reasons for it. In some instance the plaintiff said he could not afford the medication. In other instances he said that the medication made him nauseous and other medications caused his psoriasis to become aggravated. It is not as if the plaintiff deliberately chose, through his own decision or through carelessness, the non-taking of medication.
4. Thirdly, the defendant submits that the plaintiff has had a turbulent family life, which has contributed to his condition of hypertension. It is true that the plaintiff has been married on two occasions and divorced on two occasions. However, whilst they may have been stresses in the plaintiff's life, that is not to say that they were the cause of his hypertension which in any way alleviates the general practitioner from prescribing appropriate treatment.
5. The defendant submits that the plaintiff was assaulted and spent some period in receiving both workers compensation and at a later stage some social services or in reverse order. Again these matters are not relevant for the issue to be determined. Next, the defendant refers to the contribution from his diabetes, which was diagnosed in 2004. However, again this is a matter which, whilst it has made his medical condition complicated, does not absolve a practitioner from prescribing appropriate treatment.
6. The defendant submits that the plaintiff failed to follow instructions of his doctor, namely that he was told to return in two weeks' time following a reading, but he did not return for some months. However, after that, when he did return, the readings were still in excess. On 2 November a reading was recorded at 157 over 89 and on 3 March 2011 it was recorded at 156 over 104. Again this matter is a factor for consideration, but is secondary to the critical matter of whether the plaintiff should have been referred to a specialist in April 2009. The defendant did not cross-examine Dr Clyne, nor Dr Thornley.
7. On the critical issue of whether the plaintiff's condition may have been postponed by up to two years Dr Burke did not provide an opinion as to the length of time the plaintiff may have been able to postpone dialysis. Dr Burke agreed it may have slowed his condition. The Court considers that Dr Burke's opinion that it may have slowed the condition is not in conflict with that of Dr Thornley.
8. The defendant submits that Dr Thornley is an endocrinologist, not a renal physician, and that he deferred to Dr Burke as to the whether or not referral to a specialist in renal matters would have postponed the illness. Dr Thornley is an endocrinologist of significant experience and practice and the Court notes that in his training as an endocrinologist he was required to study matters of the renal speciality for a year .
9. The defendant was dismissive of Associate Professor Clyne, stating that he was in effect a general practitioner and did not possess the requisite expertise. Associate Professor Clyne has been in practice for 39 years and holds many eminent positions in his field.
10. The Court considers that the evidence of Dr Thornley should prevail. Namely, that had the plaintiff been referred to a specialist physician practising in the renal area, at a time when the indicators were that he was suffering from chronic renal failure, in April 2009, should be accepted. Dr Bourke did not contest such conclusion, and Dr Burke's evidence is supportive of such opinion.
11. As to the length of time when the plaintiff may have been able to postpone dialysis, Dr Burke, whilst he could not quantify the time, agreed that it may have slowed the progress. The Court, in view of the unchallenged evidence of Dr Thornley, considers that two years is the approximate time. The Court also notes the evidence of Associate Professor Clyne is supportive and considers that in the circumstances the evidence establishes that the plaintiff should have been referred for specialist renal treatment in April 2009 and thereafter, being in mind that the hypertension was, according to all the records, poorly controlled or uncontrolled. Lastly, Dr Burke agreed the earlier intervention might have slowed the progress of the plaintiff's condition.

PRINCIPLES

1. The principles giving rise to a claim under the Civil Liability Act have been clearly stated by the High Court of Australia in Strong v Woolworths Ltd [2005] HCA 5 where the Court affirm that the need to establish causation (see paras 17 and 18 of that decision). Under the Civil Liability Act factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of a particular harm. (For discussion on this aspect see para 20 in Strong).
2. There may have been competing factors but if the defendant's negligent act or omission is sufficient to account for the occurrence of the harm, it will meet the test of causation in s 5D(1)(a) of the Act. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, 14 February 2018, the Court of Appeal again referred to the issue of negligence. At para 139 a quotation by the then Chief Justice, Sir Leslie Herron in EMI Australia Limited v Bes [1970] 2 NSWR 238 at 242 was restated where his Honour said: "But if medical evidence is prepared to say that it is a possible view then in my opinion, the judge after examining the lay evidence, may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning."
3. The evidence in this case indicates that there was the probability and more so it establishes the probability that the plaintiff's condition could have been delayed had he been referred to a renal physical.

LIMITATION ACT

1. The defendant has made numerous submissions factually concerning the application of the defence it raises under the Limitation Act. It relies upon the fact that a medical note taken by a Dr Wendy Rees in the plaintiff consultant following his cessation of association with Dr Ngo, states on 13 November 2013, "Wants to report - ". The full text is, "Wants to report his old GP who (he alleges) did not disclose abnormal results to him."
2. Thereafter on 23 November 2012 another note of Dr Wendy Rees records the plaintiff was, "Feeling upset, seen lawyer." Later on 30 May there was an entry in Dr Rees' notes, "Very stressed about being let down by past GPs. Will sue." It also states on 4 June 2013, "Feeling upset. Seen lawyer." On this evidence the defendant submits that the claim is outside the limitation period. An affidavit of Julie Baqleh has been tendered in evidence which records that the first time that her firm, which acts for the plaintiff, was retained to act for the plaintiff, was 18 July 2014. There was apparently a telephone call made from the plaintiff in or about March 2013. The affidavit states: "Following receipt of the plaintiff's medical records I qualified Associate Professor Peter Clyne, expert general practitioner on 17 September 2015 to provide us with an expert report on liability." "We received an expert liability report from Associate Professor Peter Clyne incorrectly dated 30 October 2016. Received on 17 December 2015." Paragraph 5, "Based on the expert opinion of Associate Professor Peter Clyne, formal legal proceedings were commenced on 31 March 2016."
3. There have been several determinations by courts concerning the interpretation of the provisions of the Limitation Act. In Kay v Sydney Airports Corporation Limited [2014] NSWSC 744 the question arose concerning the time at which an act of negligence was discovered and more particularly when it was discoverable. The Court made it plain that the critical matter was when the defendant knew or ought to have known that there was a cause of action. At para 59 the phrase, "Ought to have known", was considered. Relevantly, the Court said: "If the limitation period had been intended to commence not because of a failure on the part of the punitive plaintiff to take reasonable steps but because of a failure of another person that could and should have been made clear. Rather the expression 'ought to know' was identified by reference only to what the punitive plaintiff 'would' have found out if he or she had taken all the reasonable steps."
4. In State of New South Wales v Gillett [2012] NSWCA 83 the Court considered further the question of whether there was reason for the plaintiff to know that the defendant's conduct was actionable. At 127 the Court said, "In Baker Morrison at 39, Basten AJ decided that 'the key factors necessary to establish legal liability' must be know before one knows that an injury was caused by the fault of the defendant…"
5. In Baker-Morrison v State of New South Wales [2009] NSWCA 35 the following appears at paragraph 42: "The construction of para (c) which would involve the person obtaining medical and legal advice gain support from the fact that a number of statutory regimes contain flaws or caps on recovery of damages or both. (See for example Civil Liability Act s 16). No proper view could be formed about the justification for bringing that action absent information of that kind."
6. In this case, it is plain that until the plaintiff and its solicitors was aware that there was an actionable cause of action, it would have been improper for an action to be commenced. Since the report of Associate Professor Clyne was not received until 10 December 2015, the relevant period runs from that date. Since the action was commenced within three years of that date, the defence under the statute of limitations fails.

CONTRIBUTORY NEGLIGENCE

1. Much has been raised by the defendant on the question of contributory negligence and the extent to which the defendant has contributed to his own illness. As the Court has already mentioned, whilst drugs were prescribed for the plaintiff's conditions, they interacted in such a way as made it intolerable for him to take them. In some instances the drugs cause nausea. In other instances, the psoriasis flared up. And lastly, the plaintiff considered that he could not afford to continue paying for the medication.
2. The Court accepts these explanations even though the defendant made submissions that the plaintiff was less than frank and was not to be believed. The Court considered that the plaintiff was a witness of credit. He had obviously been trusting in the medical profession for his treatment of his various conditions, and felt gravely let down when he discovered his renal condition. The Court does not find that there is any conduct on the part of the defendant that should substantially mitigate against him in relation to a finding of negligence by the defendant.

FINDINGS

1. The Court finds that the defendant was negligent in failing to refer the plaintiff for specialist medical treatment when the test results indicated that such a course was required. In making such finding, the Court accepts the evidence of Associate Professor Clyne and Dr Thornley. Secondly, the Court finds that but for such negligence, the plaintiff may have postponed the onset of his illness for a period of two years before dialysis will be required.

DAMAGES

1. According to the evidence of Dr Bertucen, the plaintiff has been greatly distressed, and is depressed concerning his future. It is reasonable that the Court should take such feelings into account, bearing in mind that such can be compensated for under what might be described as a loss of amenity and loss of enjoyment of life for the limited period (see CSR Limited v Eddie [2005] HCA 64; 80 ALJR 59). Such decision was referred in Londos v Amaca Pty Ltd [2017] NSWDDT 7, where the Court recognised at 181 the fact that damages for the loss sustained by a plaintiff by way of general damages can be awarded.
2. The plaintiff submits that approximately 38% of the total awardable damages should be awarded, namely $233,000. Bearing in mind the fact that the plaintiff has been, most probably, deprived of two years of active life, the Court does not consider this sum to be excessive.
3. As to contributory negligence, the Court accepts that there may be a small amount to be deducted by virtue of the plaintiff's own contribution, but that amount should be limited to 10%, namely $23,300. When that is deducted, the amount remaining by way of damages is $209,700.
4. Accordingly, the Court will enter judgment for the plaintiff in the amount of $209,700. The defendant is to pay the plaintiff's costs.

Amendments 05 June 2018 - corrected formatting in paragraphs [3] and [4] 13 August 2018 - Under Slip Rule - r 36.17 the following corrections have been made to the judgment:

1. The name of Dr Trung Huu Ngo substituted as the defendant in lieu of Dr Sayed Hassan.

2. The coversheet is amended as follows: (a) Parties: replaced "Dr Sayed Hassan" with "Dr Trung Huu Ngo" (b) Representation - Counsel: replaced "Mr M Hutchins (1st Defendant)" with "Mr M Hutchings (2nd Defendant)" (c) Representation - Solicitors: replaced "Avant Law Pty Ltd (1st Defendant)" with "Meridian Lawyers (2nd Defendant)" 24 October 2018 - coversheet - medium neutral citation: replaced "Hassan" with "Ngo" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2018